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Article: Changing the Game: The Litigation that may be the Catalyst for Change in Intercollegiate Athletics

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The first reported intercollegiate athletics contest in the United States took place in 1852.1  Harvard University challenged Yale University to a rowing contest similar to those staged in England by Oxford University and Cambridge University.  To tilt the competition in its favor, Harvard University sought to gain an unfair advantage over Yale University by obtaining the services of an athlete who was not a student. 2  Subsequently, colleges and universities across the country challenged one another to athletics contests in a variety of sports.

In 1905, the United States was in an uproar over the violence associated with intercollegiate football. Football student-athletes’ use of gang tackling and mass formations led to numerous injuries and deaths.3  Thus, the public urged universities to abolish football or take steps to reform the game.  As a result, President Theodore Roosevelt called the nation’s top intercollegiate athletics leaders to the White House to discuss reformation of intercollegiate football.4  One such leader, Chancellor Henry M. MacCracken of New York University, called a meeting of officials from the nation’s thirteen most prominent universities to discuss reformation of the intercollegiate football playing rules.  Subsequently, a sixty-two member body formed the Intercollegiate Athletic Association of the United States (IAAUS).5  In 1910, the IAAUS became known as the National Collegiate Athletic Association (NCAA). For the next ten years, the NCAA was merely a discussion group that developed rules applicable to intercollegiate athletics.

The complexity and scope of intercollegiate athletics has grown substantially since the 1920s.  Today, the NCAA is a voluntary unincorporated association that governs more than 1,200 colleges, universities, athletic conferences, and sports organizations; 380,000 student-athletes; and eighty-eight championship events in three divisions.6  To improve efficiency and parity, the NCAA promulgated rules and regulations to monitor a variety of issues facing member institutions, conferences, student-athletes, and coaches, including bylaws governing amateurism,7 recruiting,8 eligibility,9 financial aid,10 and practice and playing seasons.11  These rules and regulations, established by volunteer representatives from member institutions and conferences, govern intercollegiate athletics and seek to further the goals set forth by the NCAA.12  The NCAA has established goals to “[p]romote student-athletes and college sports through public awareness . . . [p]rotect student-athletes through standards of fairness and integrity . . . [p]repare student-athletes for lifetime leadership, and [p]rovide student-athletes and college sports with the funding to help meet these goals.”13

Intercollegiate athletics has become a successful commercial enterprise.  Through the advent of television and media outlets and a growing public appetite for sports spectacle, intercollegiate athletics has continued to grow rapidly.  In 1938, the University of Pennsylvania televised the first intercollegiate football game.14  Then, in 1951, the NCAA members endorsed a program of restricted live football telecasts, administered through the 1983 playing season.15   However, the NCAA television plan was met with skepticism, and it was ultimately found by the United States Supreme Court to violate antitrust laws.16  Today, the NCAA’s television involvement includes broadcasts and cable telecasts of championship events such as the Division I Men’s Basketball Tournament (“March Madness”).17  In June 2010, the NCAA negotiated another blockbuster deal to televise March Madness, whereby the NCAA will receive $10.8 billion over fourteen years from CBS and Turner Sports for March Madness’ media rights.18

As a result of commercial advancements, intercollegiate athletics has grown into a multibillion-dollar industry annually.19  During the 2010-2011 college football bowl season, the Bowl Championship Series (BCS) distributed over $169 million, which derives, in part, from a $125 million ESPN media rights agreement.20  Intercollegiate athletic conferences are also negotiating and obtaining enormous media rights agreements, which is evidenced by the Southeastern Conference’s fifteen-year, $2.5 billion agreement with ESPN.21  As a result of the economic prosperity in intercollegiate athletics, coaches and administrators are receiving generous salaries and benefits.22

In the mid 1990s, economic analysts estimated the capitalized economic value of major intercollegiate athletics programs, such as the University of Michigan, University of Notre Dame, the Ohio State University, University of Florida, and other similarly situated programs, to be $250 to $300 million, which is comparable to major professional sports franchises.23  It would seem these programs would have substantially more value today.

This article will argue NCAA student-athletes are neither professionals nor amateurs; therefore, courts should adopt a new standard of review to determine whether student-athletes have cognizable claims against the NCAA when balanced against the traditional notions of amateurism.  Part II of this article provides a historical view of amateurism and how the principles of amateurism have changed over time.  Part III discusses and sets forth claims brought by student-athletes against the NCAA in five very important lawsuits: White v. NCAA, Oliver v. Barratta, Keller v. NCAA, O’Bannon v. NCAA, and Agnew v. NCAA. Finally, Part IV discusses how these lawsuits will impact the future of the NCAA and intercollegiate athletics, and how the traditional notions of amateurism are no longer a cognizable justification to challenges brought by student-athletes.

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Christian Dennie received his B.B.A. from Sam Houston State University and his J.D. from the University of Oklahoma College of Law. He is a partner at Barlow Garsek & Simon, LLP with offices in Dallas, Texas and Fort Worth, Texas and is an adjunct professor of law at Texas Wesleyan University School of Law. This Article is dedicated to Lillie Grace Dennie who has a world of opportunities ahead.

  1. See RONALD A. SMITH, SPORTS AND FREEDOM: THE RISE OF BIG-TIME COLLEGE ATHLETICS 168 (Peter Levine & Steven Tischler eds., 1988). [↩]
  2. Rodney K. Smith, The National Collegiate Athletic Association’s Death Penalty: How Educators Punish Themselves and Others, 62 IND. L.J. 985, 989 (1987). Clearly, the propensity to seek unfair advantages existed from the beginning of intercollegiate athletics in the United States. [↩]
  3. Id. at 990 (stating in 1905, there were approximately eighteen deaths and one hundred major injuries in intercollegiate football). [↩]
  4. Id. [↩]
  5. It was the flying wedge, football’s major offense in 1905, that spurred the formation of the NCAA. See Dr. Myles Brand, Address to the National Press Club (Mar. 4, 2003), available at http://www.ncaa.org/wps/wcm/connect/06f11d004e0d4e059106f11ad6fc8b25/20030304_nat_press_club_speech.pdf?MOD=AJPERES&CACHEID=06f11d004e0d4e059106f11ad6fc8b25. [↩]
  6. See Differences Among the Three Divisions, NAT’L COLLEGIATE ATHLETIC ASS’N, http://www.ncaa.org/wps/wcm/connect/public/ncaa/about+the+ncaa/who+we+are/differences+among+the+divisions/division+i/about+division+i (last visited Apr. 12, 2011); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 529 (3rd Cir. 2007); Breakdown of 88 NCAA Championships International Rights Holder, NAT’L COLLEGIATE ATHLETIC ASS’N, http://www.ncaa.org/wps/wcm/connect/6322f5804e0da8699802f81ad6fc8b25/App6.pdf?MOD=AJPERES&CACHEID=6322f5804e0da8699802f81ad6fc8b25 (last visited Oct. 6, 2011); Press Release, Nat’l Collegiate Athletic Ass’n, NCAA Launches Latest Public Service Announcements, Introduces New Student-Focused Website (Mar. 13, 2007), available at http://fs.ncaa.org/Docs/PressArchive/2007/Announcements/NCAA%2BLaunches%2BLatest%2BPublic%2BService%2BAnnouncements%2BIntroduces%2BNew%2BStudent-Focused%2BWebsite.html. [↩]
  7. See 2010-2011 NCAA Division I Manual § 12 (2011) [hereinafter NCAA Bylaws]. [↩]
  8. See id. § 13. [↩]
  9. See id. § 14. [↩]
  10. See id. § 15. [↩]
  11. See id. § 17. [↩]
  12. See 2010-2011 NCAA Division I Manual § 1.2-1.3 (2011) [hereinafter NCAA Constitution]. [↩]
  13. State of the Association address, THE NCAA NEWS (Jan. 17, 2000, 3:20:09 PM), http://fs.ncaa.org/Docs/NCAANewsArchive/2000/association-wide/state%2bof%2bthe%2bassociation%2baddress%2b-%2b1-17-00.html. [↩]
  14. Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 89 (1984). [↩]
  15. A Brief History of NCAA Television Coverage, NAT’L COLLEGIATE ATHLETIC ASS’N, http://www.ncaa.org/wps/wcm/connect/broadcast/media/broadcasting/a+brief+history+of+ncaa+television (last visited Apr. 12, 2011). [↩]
  16. Bd. of Regents, 468 U.S. at 106-113 (holding the record supported the district court’s conclusion that the NCAA unreasonably restrained trade under the Sherman Act). [↩]
  17. A Brief History of NCAA Television Coverage, supra note 15. [↩]
  18. Steve Weiberg, NCAA President: Time to discuss players getting sliver of revenue pie, USA TODAY (Mar. 29, 2011), available at http://www.usatoday.com/sports/college/mensbasketball/2011-03-29-ncaa-pay-for-play-final-four_N.htm. [↩]
  19. See KNIGHT FOUNDATION COMMISSION ON INTERCOLLEGIATE ATHLETICS, A CALL TO ACTION: RECONNECTING COLLEGE SPORTS AND HIGHER EDUCATION 17 (2001), available at http://www.knightcommission.org/images/pdfs/2001_knight_report.pdf. [↩]
  20. Revenue Distribution Data Released, ESPN.COM (Jan. 25, 2011), http://espn.go.com/espn/print?id=6057935&type=story; Weiberg, supra note 18. In turn, bowl games distributed over $260 million to colleges and universities. And, the bowl games generated $1.285 billion in economic impact for the host communities. Id. [↩]
  21. Weiberg, supra note 18. [↩]
  22. Id. (stating University of Louisville head basketball coach Rick Pitino is being paid $7.5 million in 2011). [↩]
  23. See RICHARD G. SHEEHAN, KEEPING SCORE: THE ECONOMICS OF BIG TIME SPORTS 314-17 (1996). [↩]
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