Pay College Athletes Now
While I was a graduate student at Iowa, I taught first- and second-year general education courses. A few of my students were athletes; I remember two: one was a swimmer, another the star forward on the basketball team. Although I had friends whose experiences with athletes in their classes were, shall we say, mixed, the athletes in my classes were outstanding. Often exhausted, they nevertheless worked hard and gave me hope for the future. There are thousands of other young men and women exactly like those students of mine. All of them work their asses off to represent themselves, their schools, their states, their sports. For all that work, a very small fraction of athletes leverage their success into professional contracts; it’s a fraction too small to be meaningful. The rest receive at most five years of tuition, a stipend for books, and some measure of self-worth for having excelled. Many receive even less than that because their scholarships are year-to-year and at the discretion of the coaches for whom they play; a few are severely injured and lose their quality of life for the rest of their lives. All of those athletes, Taylor Branch’s exposé of the NCAA makes clear, lose much, much more. Take this shining example of death by legalism:
In 2008, Andrew Oliver, a sophomore pitcher for the Oklahoma State Cowboys, had been listed as the 12th-best professional prospect among sophomore players nationally. He decided to dismiss the two attorneys who had represented him out of high school, Robert and Tim Baratta, and retain Boras instead. Infuriated, the Barattas sent a spiteful letter to the NCAA. Oliver didn’t learn about this until the night before he was scheduled to pitch in the regional final for a place in the College World Series, when an NCAA investigator showed up to question him in the presence of lawyers for Oklahoma State. The investigator also questioned his father, Dave, a truck driver.
Had Tim Baratta been present in their home when the Minnesota Twins offered $390,000 for Oliver to sign out of high school? A yes would mean trouble. While the NCAA did not forbid all professional advice—indeed, Baseball America used to publish the names of agents representing draft-likely underclassmen—NCAA Bylaw 220.127.116.11 prohibited actual negotiation with any professional team by an adviser, on pain of disqualification for the college athlete. The questioning lasted past midnight.
Just hours before the game was to start the next day, Oklahoma State officials summoned Oliver to tell him he would not be pitching. Only later did he learn that the university feared that by letting him play while the NCAA adjudicated his case, the university would open not only the baseball team but all other Oklahoma State teams to broad punishment under the NCAA’s “restitution rule” (Bylaw 19.7), under which the NCAA threatens schools with sanctions if they obey any temporary court order benefiting a college athlete, should that order eventually be modified or removed. The baseball coach did not even let his ace tell his teammates the sad news in person. “He said, ‘It’s probably not a good idea for you to be at the game,’” Oliver recalls.
The Olivers went home to Ohio to find a lawyer. Rick Johnson, a solo practitioner specializing in legal ethics, was aghast that the Baratta brothers had turned in their own client to the NCAA, divulging attorney-client details likely to invite wrath upon Oliver. But for the next 15 months, Johnson directed his litigation against the two NCAA bylaws at issue. Judge Tygh M. Tone, of Erie County, came to share his outrage. On February 12, 2009, Tone struck down the ban on lawyers negotiating for student-athletes as a capricious, exploitative attempt by a private association to “dictate to an attorney where, what, how, or when he should represent his client,” violating accepted legal practice in every state. He also struck down the NCAA’s restitution rule as an intimidation that attempted to supersede the judicial system. Finally, Judge Tone ordered the NCAA to reinstate Oliver’s eligibility at Oklahoma State for his junior season, which started several days later.
The NCAA sought to disqualify Oliver again, with several appellate motions to stay “an unprecedented Order purporting to void a fundamental Bylaw.” Oliver did get to pitch that season, but he dropped into the second round of the June 2009 draft, signing for considerably less than if he’d been picked earlier. Now 23, Oliver says sadly that the whole experience “made me grow up a little quicker.” His lawyer claimed victory. “Andy Oliver is the first college athlete ever to win against the NCAA in court,” said Rick Johnson.
Yet the victory was only temporary. Wounded, the NCAA fought back with a vengeance. Its battery of lawyers prepared for a damages trial, ultimately overwhelming Oliver’s side eight months later with an offer to resolve the dispute for $750,000. When Oliver and Johnson accepted, to extricate themselves ahead of burgeoning legal costs, Judge Tone was compelled to vacate his orders as part of the final settlement. This freed NCAA officials to reassert the two bylaws that Judge Tone had so forcefully overturned, and they moved swiftly to ramp up rather than curtail enforcement. First, the NCAA’s Eligibility Center devised a survey for every drafted undergraduate athlete who sought to stay in college another year. The survey asked whether an agent had conducted negotiations. It also requested a signed release waiving privacy rights and authorizing professional teams to disclose details of any interaction to the NCAA Eligibility Center. Second, NCAA enforcement officials went after another Scott Boras client.
Branch’s essay is chock full of stories just as bad that. Invariably, the weak are bowled over and exploited by the strong, all in the name of some lofty ideal of amateurism that is in practice deployed to justify and exploit the labor of others. It’s an indefensible system. It’s past time to abandon the ridiculous farce that is “amateurism” in college athletics and pay young men and women for the time they put in and the work they do. How to begin? Well, a good small step would be to discourage formal professional leagues from enforcing NCAA rules. The NCAA is a ridiculous organization with extraordinarily punitive rules for those who are part of it; there’s no need for other organizations to act as its proxy. A better step is to support antitrust suits against the NCAA proceed in the courts; with any luck, they’ll break up the organization’s ham-fisted cartel. Neither step will move things fast, but I have to believe they will help change the conversation sooner than later.