NFL NCAA MLB IOC WADA IAAF ITF FIFA NBA/WNBA NHL MLS PGA
AGONY IN THE SHADOWS OF VICTORY ©
- Monumental Mishandling of the Russian Doping Scandal By the IOC and WADA
- NFL's Underlying Problems Have Been Ignored for So Long Some May be Beyond Salvation
- The NCAA Is Wrong for Big Time Collegiate Basketball, Football, and Other Sports
- Legal Fictions Abound
- (1) Professional Team Sports
- (2) The NCAA
- Public Subsidies to Benefit Wealthy Team Owners: The NFL Leads the Way in Greed and Deception
In recent decades it has become increasingly evident that for all the good we attribute to the enjoyment of our most popular spectator sports, there is a substantial downside that can be very ugly. Our devotion to sports entertainment—with more than occasional fanaticism and underlying malevolence—has undermined community values and contributed to various social pathologies. How this has happened is based in large part on the emergence of powerful sports enterprises—including the NFL, NCAA, MLB, NBA/WNBA, NHL, PGA, IOC, ITF, FIFA, MLS, IAAF, and WADA—that have made financial gain their primary directives.
These large sports organizations, which share many of the worst characteristics of corporate cartels, have created or facilitated a host of social problems, both domestically and globally, especially in youth sports. Such pathologies, as exemplified most prominently in the United States by professional and collegiate football, include:
poor physical and mental health and rampant impairments;
violence, crime, sexual abuse, bullying, and other bad behaviors;
invidious discrimination and lack of diversity;
moral decay in the name of generating wealth and revenues; and
public subsidies and education revenues being used to support increasingly extravagant stadiums and arenas for billionaires or athletic departments at major public education institutions.
Many of these social ills have emanated from the flawed behaviors of privileged and entitled elite athletes and pretenders, who do not fully understand or care about social boundaries. Such dysfunctions are encouraged and facilitated, if not directly supported, by the businesses and organizations that are in charge of operating these sports. Furthermore, the leaders of international sports cartels-- most prominently FIFA, the IOC, and the IAAF --have been investigated and occasionally prosecuted for engaging in criminal activities intended to unjustly enrich themselves.
Sports cartels have thrived using propaganda, political alliances, and power and influence. They have brought together politicians, Christian religions, the military, and fans to promote their selfish interests. As a result, our most popular professional sports leagues, collegiate sports conferences, and international sports organizations have received statutory and enforcement preferences and exemptions from antitrust and related laws that typically regulate other enterprises doing business in the United States. These special relationships also largely explain why so many billions of dollars of public funds have been used to subsidize the building of extravagant stadiums and arenas when vital community needs are being ignored.
MONUMENTAL MISHANDLING OF THE RUSSIAN DOPING SCANDAL
IOC-WADA Collaborations Have Been An Unmitigated Disaster©
By John Weston Parry
There are so many disappointing aspects to the Russian doping scandal that it is difficult to know just where to begin or end the discussion. The International Olympic Committee’s (IOC) belated compromise to partially ban Russia from the upcoming Winter Games is unlikely to improve the overall efficacy or fairness of its flawed anti-doping enforcement protocols going forward. Punishing Russian athletes without providing them with due process is not a reasonable alternative either. Moreover, what should be the most important doping consideration—the health and safety of Olympic athletes—is continually being down-played or ignored.
Doping should be treated as a public health problem, rather than a political hot potato in which self-serving enforcement standards and sanctions change depending on the target and who is making the decisions. Collaborations between the IOC and the World-Anti-doping Agency (WADA) have been an unmitigated disaster on almost every front, except as diversions to protect the interests of Olympic and anti-doping officials. Until recently, both the IOC and WADA continued to have influential members, who served as employees of the Russian government. The entire global organizational structure for identifying substances to ban, testing banned substances, and enforcing those bans should be re-imagined and rebuilt.
The Olympic Myth of Bringing Nations Together to Foster Peace and Harmony
Rarely, except for the losing nations in World War I, have offending countries been banned from the Olympics. Beginning with the authoritarian influence of Avery Brundage (1936-1972), the IOC has tried to create the illusion that Olympic sports competitions foster global peace and harmony. Brundage worked hard to establish and maintain that fiction, even during the Cold War Olympic years. More disturbingly, as President of the U.S. Olympic Committee, Brundage lobbied hard for Nazi Germany to become the host of the 1936 Summer Olympics.
By necessity, during World War II (1940 and 1944), the Olympic Games were canceled. In 1948 when the Olympics resumed both Germany and Japan were unable to field teams because, as occupied nations, they had no independent national governments. Since 1924, South Africa and Rhodesia have been the only nations to be completely banned from these global competitions. Those two countries—not coincidentally—had very little political clout within the IOC hierarchy. South Africa, despite Brundage’s vociferous objections, was barred from 1964 to 1988 because of its apartheid policies. Rhodesia was banned in 1972, primarily at the behest of Great Britain, which was angry at Rhodesia for declaring independence from British colonial rule. In 1976 Rhodesia was banned once again based in part on evidence that its minority white government was discriminating against and suppressing black citizens.
More than 30 years passed until the next nation was banned from the Olympics, in what appears to have been a politically motivated power squabble. The IOC partially banned the sports-challenged country of Kuwait from 2010 to 2012 and then again in 2015 to the present because its government appeared to be undermining the independence of the Kuwait Olympic Committee. Kuwait’s imperious actions threatened the IOC, which views itself as being largely above the laws of every national government, including the United States. By comparison, vicious totalitarian nations, including North Korea, Iran, and Russia, which threaten world peace, continue to be warmly welcomed by much of the Olympic community.
In this self-interested, profit-seeking, laissez-fair environment, which has existed for many decades, it has been especially difficult to convince the IOC to sincerely investigate, much less sanction, the many different countries that have been involved in facilitating or covering-up the use of illicit and illegal performance-enhancing substances by their athletes. WADA did not even come into existence until 1999, and then only as a lap dog for the IOC. In recent years, many national Olympic organizations and affiliates, including those in Russia, China, Jamaica, Kenya, Ethiopia, Norway, the Netherlands, Canada, Turkey, the United States, and elsewhere, have been serial offenders, but never decertified or otherwise sanctioned, for failing to adequately monitor and investigate doping by their Olympic athletes.
Arguably the most blatant example of Olympic neglect, however, has nothing to do with doping. That involves the abject failure of the United States Olympic Committee (USOC) and USA Gymnastics to protect hundreds of young American female Olympic gymnasts from being sexually abused by various coaches and their team doctor over the past twenty-years. (See, “Wanton Neglect By Olympic and Michigan State Officials Facilitated the Sexual Abuse of Hundreds of Female Gymnasts,” Sportpathologies.com/blog)
In the history of the modern Olympics, East Germany during the Cold War years and now Russia have been condemned as the very worst offenders. Curiously, the IOC never formally sanctioned high-level East German sports officials for their roles in promoting widespread doping amongst their athletes, even though their transgressions turned out to be part of the government’s “state plan.” What made the lack of scrutiny so much worse is that hundreds of East German Olympic athletes, particularly females, developed serious and even catastrophic health impairments, especially from abusing steroids and other testosterone-producing drugs. Similar, as well as different, health risks exist for the many athletes who abuse—and/or are strongly encouraged to take—performance-enhancing substances today.
State-Sponsored Doping in Russia
With regard to the Russian Olympic doping scandal , it is important to understand that for many reasons IOC leaders never wanted to be directly involved, particularly beginning in 2009 after they had awarded Russia the 2014 Winter Olympics. Russia has been one of the most influential members of the IOC in recent years, especially since the USOC has been partially ostracized due to its long-running power struggle with the IOC over the division of American television revenues. Thus, it took an extraordinary amount of global outrage to convince the IOC to do anything that might offend their powerful comrades in the Russian Sports Ministry and various Russian Olympic organizations and affiliates, including the Russian Olympic Committee. Ultimately, though, outrage against Russia on many political fronts, not just doping, forced the IOC to act, but in a way that would be reasonably expedient for its members.
At least as far back as February 2010, knowledgeable Russian insiders had informed WADA that the Russian Sports Ministry and that nation’s anti-doping agency were assisting large numbers of Russian athletes to cheat. Nevertheless, it took nearly five years for WADA to respond. Incredibly, until 2015 the only global anti-doping agency in the sports world lacked any independent authority to conduct its own investigations and issue sanctions.
Apparently in 1999 when the IOC established WADA, it was made abundantly clear that those drug enforcement officials would do nothing more than conduct tests and report cheating violations to the IOC. In addition, by 2009 any investigations that involved Russian doping became further compromised because the IOC had a vested interest in protecting Putin, the Russian Olympic Committee, and Russia’s powerful sports ministry. Russian government officials were directly responsible for ensuring—leading up to and during the 2014 Sochi Olympics—IOC members received the “special considerations” that they have come to expect.
Typically, such considerations have involved official and unofficial representatives of host nations/cities providing IOC members with hundreds of thousands of dollars in illegal and/or illicit benefits as a quid pro quo for being rewarded with the Winter or Summer Games. One of the most publicized payoff schemes occurred in conjunction with the 2002 Salt Lake Winter Olympics. Similar shenanigans occurred in Rio as well. Allegations already have been lodged and are being investigated regarding the decision to award Japan the 2020 Summer Olympics in Tokyo. Olympic corruption never seems to end.
Eventually WADA did begin to test Russian athletes using its admittedly flawed procedures, but it was still up to the IOC to conduct further investigations and issue any sanctions. For more than five years the results were predictable. As the Washington Post’s Sally Jenkins explained, IOC members looked the other way “while they dined from the ice-sculpture buffet and sipped their aperitifs.” They were, she said, hypocrites, for blaming Russian athletes “whose choice was to either participate in doping… or face angry state authorities, maybe even a gulag.” That enforcement slight of hand “conveniently divert[ed] attention from the IOC’s own misdeeds, the offenses that they either committed or enabled and ignored.”
Even IOC President Thomas Bach had to acknowledge later—while insincerely deflecting criticism from himself and the IOC—that the international anti-doping system was rife with major structural deficiencies, including “politics and possible conflicts of interest.” In order to tame those destructive influences, Bach recommended that WADA be independent of all the sports organizations that have a pecuniary interest in the athletes the anti-doping agency is supposed to monitor and investigate. Unfortunately, that may be extremely difficult to accomplish since WADA depends heavily on those sports organizations for its funding.
What happened—or more accurately did not happen—in the Russian investigation should have been expected. It was not until 2015, eleven months after the Sochi Games had concluded, that WADA finally issued a report accusing the Russian government of orchestrating a pervasive scheme to create a secret doping program for its Olympic athletes in preparation for those Winter Olympics, as well as for the Rio Summer Games that would follow in 2016. During all those years, the IOC was conspicuously silent, even though it fully recognized that WADA had no independent investigatory powers apart from the IOC itself.
Moreover, as described in The Athlete’s Dilemma: Sacrificing Health for Wealth and Fame (Rowman & Littlefield, June 2017), even after that report was issued, very little changed. “Despite the scope and grandeur of the accusations …, the IOC-approved WADA sanctions were remarkably restrained….” Rather than penalizing specific Russian government officials, WADA decided to rescind “the accreditation of a lab in Moscow at the center of the scandal. This lab not only had destroyed hundreds of drug samples of Russian athletes, but had produced undetectable drugs for athletes to use.”
In addition, the International Association of Athletic Federations under the leadership of its new president, Sebastian Coe, grudgingly agreed “to indefinitely suspend the entire Russian track-and-field team…” After schmoozing with Russian sports officials, however, Coe gave them “the opportunity to make changes… that could lead to the lifting of the ban well before the [2016 Summer Games in Rio]. There were no sanctions against any of the other Russian sports federations or … [any] Russian officials….”
Thereafter, the pressure on the IOC to take dramatic, well-publicized actions against the Russian Olympic apparatus intensified, particularly in the U.S. after the Department of Justice initiated its own highly publicized, but ultimately lackluster, criminal investigation into state-sponsored doping by Russian athletes. Ultimately, only the Russian Track and Field team was banned from the Rio Olympics. Furthermore, many of those track and field athletes were allowed to participate under a neutral flag, after establishing that they were clean. “[T]he USA Track & Field president conceded that an unknown number of Russian athletes were being made to `pay a [stiff] price for the serious transgressions of their federation’”—not to mention the incompetence and/or corruption of the IOC, WADA, and the IAAF.
Around the same time, WADA decided it should also promote the perception that its anti-doping officials were finally getting tough on Russia. Suddenly, without gathering sufficient scientific evidence, WADA decided to ban a drug known as meldonium, which was popular among Russian and other Eastern European athletes. Russian soldiers had been using this drug for many years—apparently without major health problems—to promote endurance and protect their hearts during highly aerobic warfare training exercises and other combat activities.
There was no compelling evidence that meldonium was performance-enhancing, other than to allow athletes to exercise strenuously with fewer health risks. The much celebrated Russian tennis star, Maria Sharapova, who was raised and has lived most of her life in the United States, became the most notable athlete snared in the political in-fighting between Russian sports authorities and the WADA. In the process, Sharapova lost at least two years of her career, her reputation was damaged, and she probably will never be the champion she once was.
Most of the Russian athletes, who qualified for the 2016 Olympics, were vetted and allowed to compete, which made many anti-doping proponents and members of the American sports media angry. Thereafter, stories continued to surface about Russian athletes being involved in widespread doping, which Russian officials had supposedly orchestrated. This included the reported clandestine destruction of hundreds of positive test results. One key Russian whistleblower, chemist Grigory Rodchenkov, proceeded to build a lucrative career as a purported witness to the worst aspects of Russian state-sponsored doping. After fleeing to America, he starred in a documentary and contributed to numerous media exposes.
Much of what Rodchenkov has claimed appears to be largely uncorroborated, at least in the public record. At the same time, both WADA and IOC officials have come to embrace his version of what happened. They have said it was their strong impression that what Rodchenkov claimed he had witnessed most probably was accurate. On the other hand, one of the major allegations, which Rodchenkov made against a Swiss chemist for allegedly assisting the Russians, proved to be entirely false.
To a significant extent, it has been stories about what Rodchenkov said he had witnessed or heard that have driven the doping narrative in the American media, along with public pronouncements by IOC and WADA officials regarding Russia’s apparent guilt. How much of Rodchenkov’s narrative is true and what has been made up or exaggerated for dramatic effect is difficult to ascertain because much of the supporting evidence is weak. Still, it seems to be undeniable that Russian officials orchestrated an elaborate program to encourage—or coerce—many of their athletes to use illicit performance-enhancing substances. Nonetheless, there were many other factors—in addition to widespread evidence of doping—that contributed to the IOC’s belated decision to partially ban Russian athletes from the 2018 Winter Games in PyeongChang, South Korea.
The American Perspective on Russian Doping
An important factor influencing the IOC was the American media and the potential American television audience for the Winter Games. Three diverse elements helped to mold the American narrative about Russian doping: (1) strong anti-Russian sentiments originating during the Cold War and intensified by the 2016 Presidential elections; (2) selective suspension of the commonly-held American belief that individual ingenuity is far superior to state-sponsored programming; and (3) the hope that American athletes would win more medals—with all the acclaim, ratings, and dollars that brings with it—by reducing the number of Russian athletes who would be competing at the Winter Games.
Most Americans are threatened by the Russian government for many valid, and not so valid, reasons. Russian meddling in the 2016 Presidential election has become a given, except for loyal supporters of President Trump. More importantly, virtually every major American foreign policy initiative is being opposed or thwarted by President Putin and the Russian government, especially in Syria, North Korea, and the Crimea. Thus, it has been easy for Americans to perceive the punishment of Russian athletes as a rational response to what is viewed as a loathsome Russian government, despite—or in many cases because of—the cozy relationship between Putin and President Trump.
Second, scorn for Russia also seems to have obscured the normal American bias that a relatively free market with little or no government interference will always be better than government controlled actions or policies. As Americans we pride ourselves on the ability to accomplish great things free of governmental intervention or support. There is a popular belief by many Americans that government involvement inherently lessens the product of our individual efforts.
Yet, the opposite seems to be true when it comes to molding American perceptions about state-sponsored cheating in sports by unpopular nations, especially Russia and China. We seem to be convinced that the Russian and Chinese governments, which we usually denigrate as being inept, are able to substantially exceed what American and individual athletes can and do achieve with a little help from their well-connected friends. Widespread drug cheating in baseball, football, swimming, track and field, tennis, and cycling demonstrates that this type of American ingenuity can at least approach what the Russian and Chinese governments have been able to provide their athletes with. It was even more difficult and expensive for WADA to catch Lance Armstrong than the Russians. In addition, many baseball, football and tennis players, swimmers, and sprinters continue to cheat, and most of them get away with it.
As explained in The Athlete’s Dilemma, drug cheating in professional, Olympic, and collegiate sports is rampant. The popular crusade against Russian athletes obscures more pernicious doping problems, including: the ineffectiveness and insincerity of the WADA; the negligence and corruption of IOC leaders; and the continued existence of the Russian sports apparatus, which despite all its doping crimes and misdemeanors, will be in charge of hosting soccer’s World Cup in June. In many ways, the IOC and FIFA are similarly corrupt.
Third, for many Americans punishing Russian athletes is a convenient and selfish way to promote the medal prospects of American athletes and domestic television ratings for the increasingly vulnerable and less relevant Winter Olympics. In America, Olympic achievement is defined by medals won, especially as compared to Russia. Yet, in these winter competitions, the U.S. has no chance to prevail over Russia, except by divine intervention or the IOC imposing a ban that precludes many or most of Russia’s best athletes from participating.
Whether the current ban will be effective enough to ensure a victory over the Russians in the medal count is still very much in doubt. Despite public pronouncements about high burdens and standards of proof for Russian athletes to overcome, what actually happens behind closed doors is anyone’s guess. Unless the existing requirements are arbitrarily and unfairly changed, the likelihood is that many of those Russian athletes will be cleared to participate, as was the case in Rio.
American television ratings for the 2018 Winter Olympics already were being threatened because of declining interest in the Games, time change problems making live television difficult, and a prohibition against National Hockey League players participating. Counter-intuitively, though, as with the Rio Games, the absence of many of the top Russian athletes may boost the ratings. The fact that more American athletes are in a good position to medal will bring viewers to their screens, especially if many Americans actually medal. Thus, banning Russian players not only is perceived as the right thing to do, but it appears to be very good for business—at a time when promoting business is all-important to a fragile American psyche.
Russian Athletes Are the Most Convenient and Politically Expedient Targets
The problem with profiling—presuming that an individual, who shares a group characteristic, has behaved or will behave like most other people in that group—is that typically the resulting conclusions are unreliable and invalid, and too often inaccurate. Profiling is misused to justify stops, searches, seizures, and arrests of members of minority groups producing badly flawed and controversial results. The IOC has made a similar, overly broad and logically-challenged generalization, which is as follows: every Russian Olympic athlete should be presumed to have used illicit performance-enhancing substances because the Russian government orchestrated a clandestine scheme to allow many of its athletes to cheat.
Democratic nations, particularly the United States, normally embrace due process protections that would prevent individuals from being presumed guilty by having to prove their innocence. In contrast, the Russian government does not tend to value due process nearly as highly. With regard to the Russian doping scandal, however, the normal cultural imperatives have been reversed. It is the Russians who are demanding more due process and the Americans who are willing to dispense with due process in order to punish Russia, and presumably President Putin.
Although there appears to be little doubt that the Russian government deserves IOC sanctions, there is substantial doubt as to which Russian athletes deserve to be penalized and how those determinations should be made. This is especially true, if, as a number of commentators have alleged, many of those athletes may have been given these illicit drugs without their knowledge or consent, or were compelled to take them by Russian sports officials. In addition, a significant percentage of current Russian athletes were too young to be Olympians in Sochi, so they probably were not involved in any consensual doping schemes.
By applying American principles of law, the answer to the question of how the IOC-WADA apparatus should proceed against Russian athletes should be clear: each athlete deserves a fair hearing and the burden of proof should be on the accusers to demonstrate a violation. It may be impractical and inconvenient in some cases, but it is the right thing to do. After all, WADA and the IOC have been gathering evidence against Russian athletes for many, many months, providing anti-doping officials with a substantial advantage in any fair hearing procedure.
Furthermore, as it stands, a much higher percentage of Russian doping violators are likely to be identified than drug cheaters from other nations, including the U.S. Currently, only about two percent of Olympic, collegiate, and professional athletes are identified as cheaters when they are tested. In Rio about 30 percent of Russian Olympic athletes were prohibited from competing and that percentage is likely to be considerably higher for the upcoming Winter Olympics. Those sanctions should be more than enough to deter most Russian athletes from cheating in the future, assuming those individuals are no longer being tempted or coerced by Russian government authorities.
Thus, the more important question is whether a temporary ban to its athletes will deter the Russian Sports Ministry and Russian Olympic Committee from cheating in other ways? Unless the Russian sports machine is neutralized, it is very likely that their athletes will continue to be strongly encouraged to dope, even if initially those athletes are unwilling or do not consent.
Putin, the Russian Sports Ministry, and the Russian Olympic Committee
The supreme villains in the Russian state-sponsored doping scandal—in addition to President Putin—are the Russian Sports Ministry and the Russian Olympic Committee. By all accounts, these Putin-controlled agencies were directly involved in perpetuating and orchestrating a massive fraud and cover-up. Yet, the IOC has only temporarily sanctioned one member of those two Russian agencies. Putin later gave that person a promotion and made him Russia’s point-person in preparing to host the World Cup. Otherwise, the IOC has dealt with the massive Russian interference in Olympic affairs by looking the other way. There has been an obvious political double-standard when one compares the IOC’s hands-off Russian officials policy with the harsh sanctions imposed on Kuwait for its meddling in what were deemed Olympic matters.
The IOC’s insincere actions to convince the world that it was trying to reform the thoroughly rotten Russian Olympic sports establishment have resulted in cosmetic changes with no substantial penalties being issued against the guilty officials. Vitaly Mutko, the long-time head of the Russian Sports Ministry, will no long be allowed to participate or attend international Olympic events. However, he has been replaced by his former deputy Pavel Kolobkov. Until recently Kolobkov served on WADA’s board and thus was nominally in charge of Russia’s anti-doping program.
After Mutko was sanctioned, Russian President Putin appointed him to be the Deputy Prime Minister overseeing all Russian sports. In that capacity, Mutko is in charge of planning and other preparations for the 2018 World Cup. Despite Mutko’s doping escapades, FIFA continue to warmly embrace him and shows little interest in finding out which Russian soccer players have been doping. According to the New York Times, Mutko and one of his deputies were accused of concealing and covering up “hundreds” of doping violations, including at least one that involved “a Russian soccer player.” FIFA’s response was that the Russian state-sponsored doping scandal would have no impact on “its preparations for the tournament.”
At the end of December, though, after sponsors had expressed their displeasure with the doping optics, certain cosmetic changes were made. Mutko stepped down as the president of the Russian soccer federation and chairperson of the World Cup organizing committee. Alexei Sorokin, who is the chief executive of that committee, replaced Mutko, assuming both roles. Meanwhile Deputy Prime Minister Mutko will continue to direct World Cup preparations for the Russian government.
The IOC also temporarily suspended Russia’s Olympic Committee. In addition, the IOC temporarily suspended its president, Deputy Prime Minister Alexander Zhukov. Until December, Zhukov had been helping his fellow committee members make—and thus was instrumental in influencing decisions about—what should happen to Russia’s athletes and officials in wake of the Russian doping scandal. Based on what has happened in the past, there is every reason to believe that in the relatively near future Putin appointees will once again be helping the IOC and WADA make their anti-doping decisions.
What Should Happen Now?
The common denominator in this doping debacle is that the Russian sports apparatus, the IOC, and FIFA all have long histories of institutional neglect and corruption, while the WADA has been a willing partner. The worst thing that could happen now would be to give WADA more money and power with which to perpetuate itself. As expressed in the Athlete’s Dilemma:
Currently, almost all the organizations that oversee anti-doping in sports, and the testing protocols and enforcement procedures that they use, remain largely a mess. Collectively they provide little reassurance to the public, insufficient fairness and due process to the athletes, and unacceptable scientific and statistical reliability. The protections in place today are dictated much more by self-serving organizational and financial objectives than sound public policies to protect the health of the athletes involved.
In the context of the Russian doping scandal, at least three things need to happen going forward:
(1) the Russian governmental agencies overseeing their Olympic sports should be sanctioned and reformed;
(2) a new agency independent of the Russian government should monitor and enforce anti-doping protocols involving Russian
athletes in the role of a receiver; and
(3) WADA should be replaced by a new global public health agency that is scrupulously independent of the sports it is created to
test and monitor.
Sanctions should be imposed for Russia’s state-sponsored doping transgressions. It should begin with Russia indefinitely losing its seat on the IOC, unless and until Russian sports officials can demonstrate that their anti-doping program is: independent of Russian government influence; effective; and clean. Russia also should permanently lose its seat on WADA’s board and have no seat on any agency that is created to replace WADA.
Second, Russia’s sports anti-doping program should be placed in what American law calls a receivership. In the private sector receiverships typically are used to put mismanaged property or assets under the custodial supervision of an independent party known as a receiver. This model also has worked in the public sector to correct severe racial and economic inequities in public school systems.
The receiver—either an individual or global agency with strong public health credentials and no formal ties to Russia, the IOC, or WADA—would operate the Russian anti-doping program on behalf of Russian athletes and the Olympic movement. The receiver would ensure that Russian athletes are not being influenced, encouraged, or allowed to use illicit performance-enhancing substances. The Russian government would be charged with paying for the expenses of placing its athletes under a receivership. Payment of those costs would be a precondition for Russia being allowed to petition the IOC for reinstatement.
Finally, a new organization independent of Olympic and other sports that it will be monitoring should be established to replace the WADA. Its primary mission should be to protect the health and safety of athletes. The emphasis no longer would be on prohibiting the use of substances that are performance-enhancing in ways that are deemed to be competitively unfair.
Instead, this new global anti-doping, public health authority would only ban substances that are performance-enhancing and create unreasonable health risks to the athletes using them. Performance-enhancing substances would be allowed if they are medically prescribed and administered in dosages: (1) with a demonstrated therapeutic value; or (2) that have no unreasonable short-term or long-term health risks. Testing would be conducted regularly both during and outside competitions with the same frequency and protocols being applied to every athlete and to every sport.
THE NFL’S UNDERLYING PROBLEMS HAVE BEEN IGNORED FOR SO LONG SOME APPEAR TO BE BEYOND SALVATION©
John Weston Parry
Even a few owners are beginning to realize that, despite skyrocketing revenues and its apparent preeminent popularity, the National Football League (NFL) is a business in trouble, hemorrhaging in several different places at once. Some even participated in symbolic gestures during the National Anthem to show solidarity against President Trump’s attack on the league. Also, rather than continuing to reflexively reward Commissioner Roger Goodell for making them extremely wealthy, the league’s compensation committee reportedly paused to actually consider dissenting opinions, notably from Jerry Jones the owner of the NFL’s most valuable franchise. Yet, even Jones’ self-serving concern that Goodell mishandled the suspension of Cowboy’s emerging superstar running back, Ezekiel Elliott, pales in comparison to the totality of problems that the NFL now faces. They include:
Unfortunately for the NFL, it already may be too late for it to respond effectively to these cascading issues. Attitudes about football have changed in ways that inevitably will devalue the game in the eyes of the public. The primary beneficiaries of the professional game’s skyrocketing bounties—the owners—have done a very poor job in protecting its future, preferring instead to maximize their short-term gains. As George Will opines so delicately, football “will never again be, as it was until recently, the subject of uncomplicated national enthusiasm.”
Ezekiel Elliot and the NFL’s Personal Conduct SNAFU
The NFL’s personal conduct enforcement system desperately needs to be scrapped. It is not only out of step with any semblance of what is supposed to constitute due process, but with the arbitration procedures used by every other major American professional team sport. The Commissioner’s decisions, beginning even before the Ray Rice scandal, have produced inconsistent, ambiguous, unfair, and arbitrary. The Tom Brady “Deflategate” fiasco that dragged for many months documented the Commissioner’s due process incompetence. It appears, however, that the Ezekiel Elliott affair may compel the owners to overhaul their personal conduct apparatus a second time. If Roger Goodell were not so adept at generating money and wealth for owners at the expense of the fans and public, he would no longer be the Commissioner.
The latest NFL personal conduct debacle has focused on Ezekiel Elliott. Goodell suspended him for six games based on a league investigation, which purportedly concluded Elliott had repeatedly physically abused his former girlfriend. The league had been trying—with limited success—to appear to be more sensitive in its handling of alleged player violence against women. Both the Commissioner and the league were widely criticized—and even condemned—for their leniency towards Ray Rice. The former Baltimore Ravens running back was given a two-game suspension, initially, even though he was seen afterwardsr in a much publicized video punching his wife in the face and apparently knocking her unconscious. According to the Washington Post, in response to that damning publicity the NFL “bolstered its security staff, said it would launch its own investigations of reports of abuse by NFL players, and deliver punishments that hold abusers accountable regardless of how the criminal justice system handles a case.”
Thus, it should not have been much of a surprise when Commissioner Goodell imposed a relatively harsh punishment on Elliott, notwithstanding the fact that law enforcement had found the evidence against him to be insufficient to launch a prosecution. It turned out later that the league’s investigator also had recommended not suspending Elliott because in her mind the evidence was equivocal. Her supervisor, however, a league executive, who is a former prosecutor, squashed that recommendation. Apparently neither Goodell nor the committee advising him had been informed about the investigator’s misgivings. According to the New York Times, the league took the official position that the investigator had found “`substantial and persuasive evidence …that [Elliott had] engaged in physical violence against [his former girlfriend] on multiple occasions during the week of July 16, 2016.”
One of the major problems with any administrative investigation of criminal-like behaviors is that neither defense attorneys nor prosecutors have a legal obligation or much incentive to share non-public information with private investigators, even the NFL. Thus, no matter how thorough and even-handed private investigators may try to be, they often are going to be missing relevant evidence. That is what happened in Elliott’s case. In addition, while they may be characterized as being independent, NFL investigators are paid by the league and report to the aforementioned former prosecutor, who apparently may choose to ignore or massage the investigators’ recommendations.
Once the federal courts became directly involved in the case based on an appeal by the players union, substantial defects in the league’s decision-making process became part of the public record. Not only had the league office ignored its own investigator’s recommendation, but reportedly Elliott’s lawyers had been denied an opportunity to compel the former girlfriend to testify at the arbitration hearing, which had been convened to review the Commissioner’s ruling. Based on preliminary evidence submitted by both sides, a lower federal court found there was a substantial probability that Elliott would ultimately prevail in the litigation to issue a preliminary injunction against the NFL. Unless it is revoked, that judicial directive prevents Elliott’s suspension from being enforced until a final court ruling is made.
The NFL has decided to appeal that preliminary injunction. Whatever happens, though, the league’s image has taken another hit. As Sally Jenkins wrote in the Washington Post, it is nm/“time for the NFL owners to rethink the powers of the commissioner… Roger Goodell uses his office as if he is a blackjack-wielding tough from the 1920’s … Every other league has seen fit to go to a mature, modern system of neutral arbitration in player discipline cases…[because] it works better for all.” The NFL and its players continue to be stuck with the self-serving and quixotic impressions of a public relations-oriented chief executive, who has no formal legal training.
Freedom of Expression for African-American NFL Players Receives a Chilly Reception
Ever since Tommie Smith and John Carlos solemnly bowed their heads and saluted with black fists as the Star Spangled Banner was being played in recognition of their having won gold and bronze medals at the 1968 Olympics in Mexico City, the image of black athletes engaging in symbolic political protest has been a flash point for controversy. Those symbolic actions of yesteryear were quite tempered compared to what many black activists, especially Professor Harry Edwards, had urged the African-American Olympic athletes to engage in, which included a boycott of the Games. Nonetheless, over the years, using the National Anthem as a vehicle for protest has proven to be particularly provocative and threatening to the professional and collegiate sports establishments.
No major sporting event can begin without playing the Star Spangled Banner. Standing respectfully at attention is no longer a sufficient tribute to the country or our soldiers. “True Americans”—most of whom tend to be white at sporting events—are expected to place their hands over their hearts. Furthermore, no major American sport, either in 1968 or now, has been more closely aligned to the political status quo and the importance of protecting the perception of America’s greatness, than football. The strength of that alliance certainly has not waned now that a life-long, avid professional football fan is in the White House, although the league's tolerance with the President's rants against the NFL and its players have reached the boiling point.
It is in this political context that Colin Kapernick taking a knee during the National Anthem should be considered. Unfortunately, Kapernick’s protest against the disproportionate percentage of incidents of police excessive force and deadly brutality involving African-Americans has been inflamed by the violence in Charlottesville and our President’s racially insensitive comments, thereafter. These events prompted ESPN personality, Jemele Hill, who is African-American, to call President Trump a white supremacist. This label would have been more appropriate for the President’s father and perhaps a few people in his administration, but seemed to be excessive—or at least premature—in characterizing Trump himself. The President’s press secretary initiated a possibly illegal campaign, joined by her boss, to have Hill fired for expressing her opinion on social media.
So far Hill, who was reprimanded and apologized for placing her employer in a difficult position, has not been suspended much less terminated, from her highly visible job at ESPN. In large part this is because in her situation she like any employee enjoys certain First Amendment protections that Kapernick does not. Currently Kapernick no longer is an employee of the NFL or any of its teams. He deliberately let his contract with the 49ers lapse in hopes of securing a better deal elsewhere. Thus, he can only hope that fans and the sports media will pressure the league enough that the owners will choose to facilitate a situation that will allow him to play again. It would be the right thing to do.
Kapernick has taken the first step towards reconciliation by indicating that he will not kneel during the National Anthem if he is hired by another team. In the interim, though, some other players around the league are engaging in similar low-key National Anthem protests. Their numbers now include several white players who feel that Kapernick is being unfairly blackballed because of his protest and political views.
The NFL and a number of its supporters, though, continue to pretend that Kapernick is not being blackballed, at least not in the sense that there is an active conspiracy to deprive him of future employment. They contend instead that Kapernick is not playing because he is washed up as a quarterback, which is preposterous given his demonstrated quarterbacking skills. While his play may have declined since his Super Bowl run in 2012-2013, last year Kapernick proved himself to be a better than average starting NFL quarterback. He started 12 games for the 49ers, threw 16 touchdowns, had only 4 interceptions, and his quarterback rating of 90 was higher than most starters, including two-time New York Giants Super Bowl winning quarterback Eli Manning.
While there is no public evidence of an organized conspiracy against Kapernick, individual owners, who desperately need quarterback help, are choosing not to retain his services, even as a back-up. To paraphrase one ESPN radio personality, owners have the right to make such decisions on behalf of their teams, which this person believes justifies the owners’ actions. Yet, in choosing to exercise their prerogatives against Kapernick, the owners may be harming the league in the long run by making an issue of their perceived racial insensitivity.
Most of the owners appear to strongly disagree with the nature and substance of Kapernick’s protest, which of course is their right. Many of them also believe, or profess to believe, that some fans will refuse to support the NFL if it appears that the league is not condemning these types of protests forcefully enough. It has been reported that an unknown number of fans have deserted the NFL already because protests involving the National Anthem are viewed as being un-American, more so than black citizens being brutalized and even killed by the police. For those unhappy fans Kapernick’s continued unemployment demonstrates the owners’ resolve. Even if a few owners like Steve Biscotti of the Baltimore Ravens may sympathize with Kapernick, they do not want to offend their fellow owners, who seem to overwhelmingly support the police and President Trump over activists protesting against racial injustice and racial inequality.
In the short-run, it is likely the NFL will simply shrug-off any concerns about the appropriateness of the owners chilling or obstructing the rights of its players to engage in various forms of political expression. Thus, it seems premature to embrace the well-articulated opinion put forth by ESPN The Magazine’s, Howard Bryant, that there is “a galvanized player movement [which] is finally standing up to the power of the league.” What should worry NFL owners and executives, though, are the long-term consequences of their doing political battle with their mostly African-American players. If, as trends suggest, football increasingly will become a game played and supported by African-Americans, then the NFL is insulting and marginalizing the very population it will need to enlist going forward.
Recognition of that possibility may have played a small role in the league deciding to support players and coaches joining together with a few owners during the National Anthem to symbolically protest President Trump's insistence that protesting players be punished, while penalties should no longer be meted out for violent hits. More likely, though, the implicit imprimatur of the league for these protests was due to the fact that the President of the United States was attacking the NFL, which could prove harmful to the players and the owners alike. In response, Marc Thiessen, who is affiliated with the conservative American Enterprise Institute, is proposing that Republicans in Congress take a closer look at "some of the federal benefits the NFL enjoys," undoubtedly with a view towards encouraging the owners to quickly restore the traditional alliance between football and the political status quo.
Tackle Football Is Especially Dangerous for Children
In The Athlete’s Dilemma: Sacrificing Health for Wealth and Fame (Rowman & Littlefield, June 2017), I explain why “children playing football is the NFL’s Achilles heel.” It is because:
[p]laying tackle football is not a safe activity for children or even older adolescents, and the prospects for making it so are discouraging... [T]hose dangers have become apparent and undeniable. Thus, the burden should be on those who want kids to play tackle football to show that the risks are manageable and worth taking. In the meantime, children—including older adolescents—should be strongly discouraged from taking those risks.
If this happens, the NFL is in big trouble. So far, however, the movement to protect children from the ravages of football continues to meet substantial resistance. Even though 76% of sports fans in a Washington Post-UMass-Lowell survey acknowledged that “head injuries causing long-term health problems for [NFL] players” was a “major problem,” most of the adults surveyed, including 66% of sports fans, still believe “tackle football is safe for high schoolers.” Incredibly, over 40%, including 48% of sports fans, cling to the reckless notion that it is safe for children to begin playing tackle football before age 14.
The seeming disconnect between fans understanding the health dangers of football to professional players, but discounting those dangers when children are involved is disturbing. As with the obvious health risks of tobacco that were ignored for so long, cognitive dissonance and misleading public relations campaigns—in this case by the NFL—account for a great deal of the disparity between medical and scientific evidence and these well-ingrained beliefs. In most high schools football continues to play an important—and sometimes dominant—role in the social activities of students and parents alike. The harsh reality, though, is that tackle football is dangerous. While safety measures can be improved somewhat, it is unlikely that without changing the nature of the game, those improvement will ever make football reasonably safe from a public health perspective.
According to recent studies, a vast majority of former professional and college football players, 99% and 91% respectively, whose brains were examined, have shown alarming signs of brain damage in the form of chronic traumatic encephalopathy (CTE). Even though these findings were based on brains that, for the most part, were submitted for study because the deceased players involved had shown symptoms of brain damage and cognitive impairments, the results are still extraordinary. Both neuro-scientists and the federal courts have concluded that the available evidence indicates, overwhelmingly, that CTE should be viewed as a common condition amongst former professional and college players.
What should be especially alarming to parents, who allow their children to play tackle football, though, are several additional considerations. To begin with, Stanford University researchers recently confirmed what many neuro-scientists suspected: it is not only concussions that impair football players’ brains. Repeated sub-concussive impacts that occur dozens of times, both in games and practice sessions, can be as devastating as repeated concussions over a lifetime. These are the types of brain traumas that were once cavalierly dismissed as being “dings” or recklessly marginalized as having one’s “bell rung.”
Second, at all levels of football, athletes are getting bigger, stronger, and faster, which means each of these collisions generates more force and impact on the brains of the players being hit, and those doing the hitting. The frequent scientific comparison, even for kids, is that each of these collisions, which may occur dozens of times in a game or in extended practice session is like driving a car into a cement wall at 30 miles an hour.
Finally, and most importantly, children’s brains and skulls do not fully develop until they are adults. This makes them especially vulnerable to being injured by concussions and sub-concussive impacts. Their brains rattle around inside their skulls, rather than being cushioned by a tighter fit. Each time young players absorb blows to their heads or bodies, the harm to their brains is much greater than it would be for an adult. Furthermore, because children can absorb more punishment without displaying symptoms of brain damage, their injuries tend to be more readily missed or ignored.
A recent Boston University study published in the medical journal Translational Psychiatry found that the risk of mental impairments and behavioral issues “later in life” tripled for former players who had begun playing football before age of 12. The study included over two hundred former athletes most of whom played football in the NFL or through college. While the study could not conclusively identify what caused these cognitive and behavioral problems to manifest themselves when the players because older adults or at what age, if any, it is reasonably safe to begin playing football, it is one more important piece of evidence supporting the view that playing tackle football as a child is dangerous.
Hopefully, sooner rather than later, educators, health professionals, and parents are going to become more concerned about the greatly elevated health risks that football presents to the children they are supposed to protect. When that happens, more and more youngsters are likely to be encouraged, if not directed, to play other less risky sports. Certain prohibitions may be put in place, while allowing children even to play tackle football may create legal liability.
These trends strongly suggest that the number of skilled professional football prospects will continue to decrease, as will the overall quality of play. When that happens, professional football, as we know it, will no longer be a mainstream sport. It will become a spectacle like boxing, cage fighting, or professional wrestling.
Declining Interest in Football
Despite their much-publicized recent problems—which have followed an the heels of the NFL’s disgraceful cover-up of brain injuries, repeatedly coercing communities to pay them huge public subsidies, and moving a team into Las Vegas, the sports gambling center of the Western World—surveys indicate that professional football remains the most popular American spectator sport. According to the aforementioned Washington Post-UMass Lowell poll, 60 percent of the respondents consider themselves to be professional football fans. Thirty-seven percent list professional football as their favorite sport, which places it at the top of those fan rankings.
At the same time, this poll is very misleading because it only measures the breadth of professional football’s popularity. The depth of that appeal appears to be far more shallow and fleeting, if the main factor to be considered is a continued willingness of fans to spend substantial sums of money to watch football either in person or on television. Increasingly younger generations of spectators are turning elsewhere for their entertainment and leisure activities. Last year the television ratings for regular season NFL games declined by nearly 10%.
The percentage of people under 50—particularly adolescent boys and young men, who in the past could be counted on to be among the most avid professional and college football spectators—is steadily shrinking. This appears to be a result of several different phenomena most notably:
Younger professional football fans seem to want a product that is not only portable for viewing in almost any location or venue, but is cheap, if not free, and can be consumed in incomplete, but vital chunks, while doing at least one other activity. Experiments by the NFL involving the streaming of games with the naïve hope that this will lead to new and substantial revenue streams is a fool’s errand. Ultimately it will lead to a reduction in overall revenues and create fans who just want to keep up with the score or watch when there are key plays or nothing else to do.
The expectation of continuing to make non-playoff football games and other live sports competitions “must see” or “appointment” TV has passed, along with its most effective proponent, Don Ohlmeyer. One of the more reliable ways to attract sports fans to professional football has been by celebrating how dangerous and violent it is compared to other mainstream sports. Today, crass celebrations of such risk-taking have been transformed by lawsuits and public opinion, which have made it imperative that NFL teams and the league appear to be doing much more to protect their players from these unnecessary and reckless dangers.
In the process of trying to make the game seem less destructive to the health of the athletes involved, the quality of competition—in terms of player and team performances—has been marginalized. Not only are players more constrained in what they may do to physically intimidate and overwhelm their opponents, but a number of football experts have observed that there is a growing shortage of skilled players in the league, especially quarterbacks and offensive lineman. Washington Post sports columnist, Adam Kilgore, has opined that as a result, the quality of play in the league is changing “fundamentally…for the worse.”
At the same time, the NFL is suspending more players than in the past for using performance-enhancing drugs. If the league’s testing protocols continue to improve, the percentage of suspended players will likely increase. This would mean a greater number of less-skilled players would be needed to replace them, while fewer players will continue to be able to enhance their on-the-field performances, artificially.
Making matters much worse for the NFL (and major college football programs as well), not as many children are playing tackle football, especially in higher income households. If this trend continues, which appears to be very likely, the decline in the quality of available players will quickly accelerate, encompassing every position on the field. The expectation has been that children from lower income families will increasingly populate professional and collegiate teams. Yet, the Washington Post has reported that the percentage of children from lower income neighborhoods playing team sports has decreased significantly primarily because the cost to participate has been “rising.”
It is not only children and their parents who are turning away from tackle football. Increasingly players are shortening their careers to try to minimize the brain damage and other long-term impairments they suspect they may have already sustained or set into motion. They also are more willing to sit out if they are injured, meaning once again a greater number of less skilled players have to be used to fill the gap.
In addition, a growing number of people in the sports media, who cover football, are questioning the ethics of being involved in promoting this violent game, and some are speaking out. In August, ESPN football analyst, Ed Cunningham, at the height of his broadcast career, abruptly quit saying that he could no longer watch the mounting injuries each week. A couple of weeks later, the Washington Post’s Jerry Brewer made the remarkable admission that “[i]f my job weren’t tied to covering the NFL, I would boycott it… I don’t want either of [my two sons] to inherit my love for a game that treats its players like toys and its fans like breathing dollar bills.”
No matter what Commissioner Goodell and the owners may claim, the future of the NFL is in jeopardy.
PUBLIC SUBSIDIES TO BENEFIT WEALTHY TEAM OWNERS: THE NFL LEADS THE WAY IN GREED AND DECEPTION©
By John Weston Parry
No sports organization has been more successful in obtaining public monies to increase the wealth of its owners than the National Football League (NFL), or more brazen. In recent months their tactics have culminated in the most egregious series of rip-offs in professional sports franchise history. This also has led the league to relocate a team to the epicenter of sports gambling in the Western World, opening the door even wider for unsavory characters to pollute professional football and its players at a time when other bad behaviors are rampant.
The Roger Goodell-led NFL has employed a mix of politics, threats, deceit, coercion, and “musical chairs” economics to unjustly enrich its owners at the expense of local taxpayers, most recently in Los Angeles, Atlanta, and Las Vegas—the “Sin City.” When metropolitan areas—including St. Louis, San Diego, and Oakland—do not hand over the cash they lose their teams, which is the Twenty First Century equivalent of having one’s legs broken. Unfortunately, many more such rip-offs are on the horizon—most conspicuously in the Washington D.C. area—since they have become the preferred way for American professional sports leagues, major university and college athletic departments, and Olympic organizations to grow their businesses and profits.
The NFL did not originate this type of sports scheming, nor is it the only league (or sports organization) to have used it effectively without being subjected to serious governmental scrutiny or sanctioned for anti-trust violations. This type of gouging of the American public began with Major League Baseball (MLB) in the 1950’s when the Dodgers and Giants relocated from New York to California and has been used by all our favorite sports leagues, including Major League Soccer (MLS)—not to mention the International Olympic Committee (IOC) and its affiliates in deciding which nations will host the Summer and Winter games. The strategy has been—and continues to be—for team owners and league officials to encourage and coerce politicians and legislators so they will divert limited public funds, which should be spent on far more critical community needs, to help finance extravagant stadiums, arenas, and other athletic facilities and infrastructures for these increasingly profitable, wealth-generating sports.
Afterwards, the primary beneficiaries of the public’s coerced and misspent generosity—the team owners—reward the local fans by charging them more and more to attend games and events, including bloated licensing and parking fees. This leaves area businesses, firms, and other wealthy patrons as the chief purchasers of the best tickets—in part because they have been able to shift a relatively small, yet not insignificant, portion of the cost to federal and state taxpayers through business-related tax deductions. Should local businesses and other wealthy fans choose not to kick in what owners deem to be sufficient private tributes by buying enough of the really expensive seats, teams threaten to move claiming community support is lacking. Even if local communities comply, franchise owners may decide to move anyway to metropolitan areas that are viewed as being more profitable and/or more generous with their tax dollars.
The Early Years
For decades owners of baseball and other major sports franchises mostly adhered—or at least pretended to adhere—to the value that professional teams should be essential assets of the communities and fans that were supporting them. This was viewed as a miniature version of the social contract. Professional sports teams had relocated before, including football’s Cleveland Rams to Los Angeles in 1946 and baseball’s Boston Braves to Milwaukee in 1953, but those franchises moved because attendance had been dwindling and their owners were actually losing money.
The long-held belief about the importance of a professional team’s loyalty to its fans was abruptly transformed when two of baseball’s most storied franchises moved to California in search of greater revenues and wealth. These two commercially and competitively successful baseball teams—the Brooklyn Dodgers and the New York Giants—decided to open the 1958 baseball season playing in Los Angeles and San Francisco, respectively, in order to make considerably more money for themselves and their various business associates.
The Dodgers’ carefully planned exodus from Brooklyn to occupy a brand new, publicly financed stadium in Chavez Ravine was the first prominent example of a professional sports franchise receiving substantial public subsidies as an incentive to relocate. The Giants followed suit almost immediately moving from Manhattan to Northern California because San Francisco officials had promised Giants owner Horace Stoneham that—as Los Angeles had done for Walter O’Malley—they too would subsidize the building of a brand new stadium. The windy, inhospitable Candlestick Park opened for business in 1960—proving that even the obvious economic benefits one of the great cities of the world provided, could be negated by stupidity.
In those days, California was seen as the American mecca for eternal optimism and sunshine (San Francisco not withstanding), opportunity, and skyrocketing profits. It was the gold rush all over again. That sudden, two-team exodus from New York City launched what would become a hard to resist windfall for major professional sports leagues. The symbolic turning point for these now commonly-employed strategies of greatly enhancing a team’s value at the public’s expense occurred in 1984 when the NFL allowed the Colts to secretly flee Baltimore for Indianapolis in moving vans during the middle of the night.
That outlandish and cowardly maneuver ushered in an era in which owners moving their franchises became a prominent concern for major metropolitan areas that had existing professional sports teams. It also became an opportunity for large metropolitan areas, which did not have teams of their own, to begin bidding wars to obtain one. Neil Demause and Joanna Cagan persuasively described this unseemly process as a Field of Schemes. From the mid-1980's through the end of the Twentieth Century, there was “an unprecedented wave of stadium [and arena] building,” spurred on by team and league-orchestrated “musical chairs” in which major metropolitan areas competed in order to keep or attract a variety of sports franchises.
During that time period alone, 10 billion dollars or more in public funds were doled out to support the construction of new athletic facilities, even though in most instances the existing stadiums and arenas could have been used for many more years. Demause and Cagan documented that by 2002 “seventeen of the thirty major league baseball teams” and “seventeen of the thirty-two [NFL] teams” either played in facilities that had been “built since 1992” or were about to move into new stadiums. Making matters worse, although these sports complexes generally were—and continue to be—“officially owned by quasi-governmental stadium authorities, the revenue streams … increasingly flow[ed] toward [the] private pockets [of team owners]….”
Two major metropolitan areas were used repeatedly to stoke recurring rumors about franchises moving and new franchises being created, which fueled the musical chairs supply and demand illusion and trickery. Both cities had lost major professional franchises: Washington in baseball; Los Angeles in football. Despite repeated—but mostly insincere—pressure by Congress to bring a team to the Nation's Capital, and many offers by potential suitors and local officials in nearby jurisdictions, Washington remained team-less from 1971 to 2005. Similarly, Los Angeles lost its professional football team for a second time in 1994 when the Raiders, which had moved there in 1982, returned to Oakland. Thus, astonishingly, the nation's second—and soon to be—largest television market had no NFL franchise until 2016.
Throughout those years both the MLB and the NFL artificially created demand. They planted misleading stories in the media that various cities—especially Washington and Los Angeles—were interested in obtaining new or existing franchises. Most of those designated cities were never that interested, or, in the case of D.C. and LA were being blackballed behind closed doors to ensure that the economic leverage of their respective leagues did not dissipate. Fortunately for the owners and leagues involved in this hustle, the sports media could be counted on to widely publicize almost any story about: a franchise that was threatening to move; or of a city which would sell its soul to obtain a franchise. These stories tended to be built on rumors, hearsay, and self-interested statements by those who were likely to benefit, rather than on facts. This form of media manipulation became so frequent that the teams which moved or threatened to move became known as free agent franchises.
The NFL Goes All-In With Its Los Angeles Hustle
While it is true that MLB originated this type of scheming to fill their coffers with public monies—and the NBA, NHL, MLS, NCAA, and IOC have all been eager participants in one way or another—the NFL, which reportedly generates some $14 billion in revenues annually, has orchestrated the most sophisticated, widespread, and profitable variation to date. NFL franchise values have continued to skyrocket as local metropolitan communities have been presented with an uncomfortable choice between building outlandishly expensive new stadiums, which substantially increase the wealth of the NFL owners at the expense of critical community needs, or losing their teams for many years, possibly forever. In 2016 and early 2017 six major metropolitan areas—St. Louis, Los Angeles, San Diego, Oakland, Atlanta, and Las Vegas—were embroiled in these NFL-generated stadium manipulations.
After using Los Angeles for years as leverage to strong arm other cities into building new stadiums, NFL owners became convinced that it would be even more profitable to place at least one football team in the nation’s biggest television market, but not until a final scam was underway. The first public inkling of a change in strategy occurred early in 2015 after the St. Louis Rams threatened to move back to L.A, unless local authorities voted to subsidize the construction of a new football stadium. What stood out as being different this time was that Stan Kroenke, the team’s owner, somehow “convinced” St. Louis politicians to allow the Rams to assume a year-to-year lease as the stadium negotiations continued, meaning the city gave up its most important bargaining chip receiving nothing in return.
At the time and certainly in hindsight, it appears likely the possibility Kroenke might decide to keep the Rams in St. Louis was a pretense designed to give his team a place to play while a new much more expensive stadium was being built for him in Inglewood, California. As Will Leitch concluded in Sports Illustrated, like the stadium shenanigans involving other professional teams, “[t]his was a real estate deal that made the Rams owner… even richer…[which] is the prime directive for commissioner Roger Goodell.”
A major element of the league’s new strategy to build extravagant, publicly subsidized stadiums in every NFL city was threatening to move a second team to Los Angeles. The idea of sharing the Inglewood site with the Rams, as the Giants and Jets were doing so profitably on the east coast, was being floated repeatedly. MetLife stadium in New Jersey, which cost $1.5 billion, remains the most costly American sports complex in history. That facility cost even more than Jerry Jones’ monument to himself near Dallas. As a result, both the Giants and Jets quickly became two of the most valuable sports franchises in the world. Despite their new found wealth, however, the Giants and Jets insisted that local taxpayers pay off tens of millions of dollars of public debt that was owed on Giants Stadium, which had been demolished in order to build the MetLife complex.
Initially, both the San Diego Chargers and Oakland Raiders used threats that they would move to Los Angeles as leverage for trying to convince local California voters to approve public funding for lavish stadium projects. Under the most publicized scenario those two teams would have shared a brand new facility in Carson, California, assuming both teams did not receive the public support they were demanding from their current municipalities. The proposed $1.7 billion dollar complex also would have been home to the Los Angeles Galaxy soccer team.
Las Vegas, Los Angeles and Atlanta Get “Ready for Some Football”
MLS had joined the lucrative game of franchise ransoms and musical chairs, not only in Los Angeles and Washington D.C. but most notably Las Vegas. A proposed $200 million soccer stadium in the “Sin City” was seen as an obvious attempt by its mayor to remove the stigma against professional franchises being located in America’s sports gambling hub. While MLS decided to pass on the stigma of Las Vegas, those well-publicized negotiations helped generate enthusiasm for an NFL team, which had been the city's ultimate objective. Across the country in the District of Columbia, city residents reportedly picked up half of the $300 million cost needed to build a new soccer stadium and its required infrastructure.
Instead of a soccer team Las Vegas landed a National Hockey League franchise without much public funding because the owner was imagining it to be a golden opportunity. He proudly named his team the Golden Knights, but later voiced extreme displeasure when he learned about the sweetheart deal the NFL was being offered, along with the probability that the Raiders football franchise would reduce his market share. He also must have been outraged that he had helped pave the road made of gold for his primary sports competition.
Not surprisingly, given the relative political sophistication of voters in San Diego and Oakland, and the amounts of public money being demanded ($550 million and $350 million, respectively), plans for new football stadiums in those two communities failed. Furthermore, it was far from certain that even if the voters had complied with the respective stadium demands, those two teams would have remained. Most of the available evidence suggests that both the Chargers and Raiders—like the Rams before them—were getting ready to move, regardless. The major question was where.
San Diego decided to become the second team in Los Angeles, sharing the expense of the costly Inglewood football stadium complex with the Rams. A number of team members and journalists complained that it made little sense to move the Chargers from its devoted fan base to be the second football franchise in a metropolitan area that already had seven professional sports teams, and major college football and basketball as well. On numerous occasions, over many years, the LA fan base had displayed a tepid interest in professional football, especially during the Rams inaugural 2016 season in which the team’s number of television viewers actually declined from what it had been in St. Louis.
Oakland, not wishing to be the third team in LA, decided to channel the ghost of Al Davis and relocate to Las Vegas, baby. According to Will Hobson of the Washington Post, the Nevada legislature already had authorized Clark County to spend $750 million on a proposed $1.9 billion Las Vegas football stadium using bonds secured by revenues from a proposed hotel room tax. In addition, the County would spend about $900 million more to improve an existing rail system, which would be used to transport fans from downtown gambling casinos and hotels to the new domed stadium and other key locations. Furthermore, it was widely reported that Goldman Sachs was going to help finance the deal based on its close relationship with multi-billionaire Sheldon Adelson, who was going to become the Raider’s owner’s partner.
Nonetheless, the much publicized enthusiasm for marrying the glitter of Las Vegas with an NFL franchise was a story so magnetic that it tended to mask several potential problems, which made—and continues to make—this venture a risky investment, not including the consequences of the close proximity to gambling and organized crime. By NFL standards, the two million people in the Las Vegas metropolitan area is a small number. In addition, there is an extremely low population density beyond the city and county limits for many miles in every direction. Thus, minimally adequate attendance and television viewership are far from a given.
Gamblers may love to bet on football, but attending or watching football games are very different leisure activities, even when those gamblers are accompanied by their families or other companions. Upon further reflection, both Adelson and Goldman Sachs expressed their doubts by withdrawing from their tentative agreements, leaving the fate of the Raiders in limbo. In the meantime, Commissioner Goodell and the NFL tried for a last time to strongly encourage Oakland to come up with the requested public funding. When that did not work, the league voted 33 to 1 to approve the move to Las Vegas with its $750 million in guaranteed public funding. Bank of America decided to put up an additional $600 million as well.
This left the Raiders with only $500 million to pay, but, according to the Washington Post, the team will have to give the other NFL owners a relocation fee of between $325-350 million. In essence, Las Vegas is paying the Raiders between $400-425 million; the rest will go to the league owners. Furthermore, the actual public outlay in addition to the transportation fix is likely to increase. As columnist Norman Chad points out, “the public handout will approach $1 billion… [in] a state that annually ranks last or next-to-last in public education…”
Even worse, because the Raiders’ new stadium will not be ready for occupancy until the 2020 season, there is always the possibility that in the interim the city of Oakland and the team would come to an accommodation, and the NFL would find some legal loophole to vacate Las Vegas. This would leave that city and county with no football franchise, a major stadium and infrastructure expense, and a mountain of bad publicity. Otherwise, it will be the Bay area that has no football, other than the Forty Niners who now play in Santa Clara forty miles away.
On the other side of the country, however, there is no good reason for the NFL to leave the burgeoning metropolis that includes and surrounds Atlanta. Nor did local residents seriously believe that the Falcons would move very far when Falcon’s owner Arthur Blank told city officials in 2013 that if the public subsidy for his team was insufficient, he would locate the stadium beyond the city limits. Blank also promised that under no circumstances would his team be renewing its lease at the Georgia Dome, which was set to expire in 2017.
Largely as a result of Blank’s pressure and the area’s obsession for football, it is still possible that the Falcons new $1.5 billion Mercedes Benz football stadium will open for the 2017 football season, buoyed by $600 million in public donations. However, delays have been reported due to the complexities of installing what is being described by CBS Sports as the “absurd[ly]” complex retractable roof. In the meantime, local taxpayers have been saddled with most of the remaining debt on the 20-year old Georgia Dome, which was financed almost entirely using a local tax on hotels and motels. As a reward for being so cooperative and compliant, Atlanta will be the host city for the 2019 Super Bowl, which is likely to cost local taxpayers even more money.
Dan Snyder Lays the Political Ground Work For His Payout
Even though Dan Snyder’s Washington area sports franchise, which he purchased in 1999 for less than a third of its current valuation, has become one of the most valuable in the world (Forbes), increasing its value continues to be his predominant preoccupation. When he bought the team, Snyder benefited from a huge licensing deal with FedEx. Beginning in 2000, Snyder also made numerous income-enhancing renovations to the team’s stadium, which had opened for business only three years earlier in suburban Maryland.
Nevertheless, Snyder seems obsessed with becoming even wealthier at the public’s expense. Not only has he demanded public monies to build a new, more extravagant stadium at a site yet to be determined, but he already has captured millions in state and local dollars to enhance his team’s headquarters and its two training facilities, which are all located in Virginia even though his team plays in Maryland.
Snyder has used his political connections and proximity to three competing jurisdictions to great advantage. His game plan to get wealthier at the public’s expense appears to have been launched in 2009 when he hired Bruce Allen as the team’s general manager. Allen is the brother of former Virginia Governor and U.S. Senator, George Allen, and is the son of George Allen senior, the Hall of Fame coach who led Washington’s football team to its first Super Bowl. Subsequently, Snyder and his politically-connected general manager convinced politicians in the fiscally conservative state of Virginia to spend over $12 million dollars on the team’s headquarters and training facilities in Loudoun County and Richmond, respectively, rather than locating them in Maryland and/or the District of Columbia.
More importantly, Snyder was creating stiff competition between these three jurisdictions for the privilege to subsidize a new football stadium. In 2014 Snyder promoted Allen to be team president, despite the franchise’s poor won and loss record and Allen’s questionable football-related decisions that had contributed to the widespread perception the team’s management was in a state of chaos. For Snyder, though, Allen’s political acumen appears to have been far more valuable—winning football games was secondary to making money and accumulating wealth.
Allen’s primary role has been to help Snyder negotiate public subsidies to benefit the team’s bottom line.Whether a new stadium will be built in Virginia remains unclear. What seems certain, however, is that it will be located in the jurisdiction that provides Snyder with the best deal, especially the promise of substantial public monies to support its construction and infrastructure. In the process, it is likely his new stadium will leave Maryland residents with a substantial debt since the FedEx Field lease will not expire until 2027.
What the NFL, MLB, and other major sports leagues and their owners have been willing to do to disrespect local communities and fans that have been supporting them—often for decades—is more than just offensive. These sports cartels led by the NFL get away with such arrogance because, in the words of Howard Bryant of ESPN The Magazine, “[t]his is what power does. It makes its own rules. It answers to know one.” That is particularly true because these self-governing professional sports leagues—much like the NCAA and IOC, which also encourage their constituent members to screw the public—have been largely, or in the case of baseball totally, exempt from enforcement of our antitrust laws and serious scrutiny from Congress. This has resulted in the creation of isolated mini-economies, which serve the selfish interests of wealthy professional leagues and other sports cartels—and their constituents—at the expense of the public.
THE NCAA IS WRONG for BIG TIME COLLEGIATE
BASKETBALL, FOOTBALL, and OTHER SPORTS
John Weston Parry
In the context of many collegiate football scandals and transgressions, what has happened to big time collegiate basketball in recent days should come as no surprise. “[S]candals in college hoops,” reads an ESPN The Magazine headline, “are as common as questionable fouls.” The depth of the corruption and hypocrisy surrounding the NCAA and its relatively new ruling collective is mind-blowing. As bad a record as the NCAA had in the second half of the Twentieth Century, what it has done since it began reorganizing in 1997 has been a national disgrace.
Over the past twenty years, the NCAA has ceded more and more power and influence to the super conferences and the most profitable university and college athletic programs. An NCAA-commissioned poll found that 79 percent of Americans surveyed believed that money was more important to major colleges than the welfare of their student-athletes. Furthermore, even NCAA President Mark Emmert finally has acknowledged—with a push from the FBI—that there should be a “fundamental change with the way college basketball is operating.”
The truly awful Penn State and FSU football scandals turned out to be only the tips of a toxic, super-conference iceberg. With the obsession to promote football and basketball revenues, regardless of the radioactive fallout, the NCAA’s new self-serving structure has polluted all the other Division I sports as well. Predictably, the most popular sports media solution being voiced to resolve the latest basketball scandals would embrace more pollution by permitting some student-athletes to share in the revenues. At the same time, the free market business model would continue to operate in collegiate sports with minimal constraints, but plenty of public, student, and alumni subsidies.
That proposed approach would add a new meaning to the term “for profit education.” Yet, it would not solve the overarching problem, which is that a relatively small number of super conference members and Notre Dame largely control the NCAA and the revenues collegiate sports generate. Although the proposed financial reformation would be more equitable for many—but not necessarily most—student-athletes, the side effects would make things even worse for the public, and further undermine academic and other educational values. The proposed changes would likely produce a system that provides limited financial rewards to a limited number of student-athletes. At the same time, a majority of the revenues would continue to flow to the most prominent athletic departments and their high profile coaches, while the overall education and health of most student-athletes would continue to be ignored.
The NCAA’s Reorganization
Economists and other social scientists who studied Division I athletic programs a number of years ago arrived at a rather self-evident, but nonetheless disturbing, conclusion that has become increasingly difficult to refute. Major college athletics operate like big businesses, although only a relatively few programs are actually profitable in the sense that they continue to produce deficits for their schools and/or the public. In 1997 to better leverage the economic opportunities for its most powerful members, the NCAA decided to restructure in ways intended to most benefit the major Division I athletic programs that produce the lion’s share of the revenues.
NCAA member schools were divided into three independently-operated divisions: I, II and III. The NCAA already had separated Division I programs into two groups by creating a special IA designation for the largest programs, based primarily on the amount of revenues they generated. With this money-weighted approach the NCAA ignored an obvious slippery slope problem, which has taken college athletics to the bottom of a very steep hill and into an educational quagmire.
When the NCAA reorganized in 1997 into three independent divisions, those with the IA designation were given far more power and influence than the rest of the Division I universities and colleges. Every Division I school was supposed to be treated equitably, but the IA representatives retained a majority of the NCAA board positions, even though they represented only about one-third of the total number of eligible universities and colleges. It was Animal Farm all over again. A relatively small number of Division I programs were more equitably situated than all the others.
Thus, year after year in this century the biggest programs consolidated their power and influence to such an extent that they eventually forced the NCAA to allow them to recommend self-punishments when they violated the NCAA rules and to allow the conferences and Notre Dame to make television deals on their own. Yet, even that disproportionate representation, increased self-government, and skyrocketing revenues were deemed insufficient to meet the commercial expectations of the largest collegiate sports factories, especially in football and basketball.
For many years almost all universities and colleges participated in intercollegiate sports by virtue of being members of a particular conference, an alliance which hardly ever changed. The military academies, Notre Dame, and a few other schools were not part of any conferences, but these were the notable exceptions because traditionally they have had enough alumni and other fan support to ensure that they could thrive on their own.
Then, a few years ago, major collegiate athletic programs in football, basketball and a few other high profile televised sports began soliciting and/or accepting bids from other major conferences. In too many instances these schools left the conferences where they had been for decades to go to a conference that appeared to give them the best chance to maximize their revenues and reduce their program deficits. To a large extent it was about television revenues and long-term deals to ensure increasing revenues for the teams and their conferences.
Soon there was chaos as conference realignments shook up the collegiate sports world. In many instances, universities and colleges joined more than one conference depending on the sport that was involved. That is why, for example, John’s Hopkins is in the Big Ten and Denver University—a national hockey power—is in the Big East, but only for lacrosse, while Notre Dame is a football independent, but a member of the Atlantic Coast Conference for other sports. Fundamentally, though, it was mostly a money grab as intercollegiate television revenues in many different sports were increasing year after year after year. They key to obtaining those precious television revenues was no longer the NCAA, but rather through major conferences, except for Notre Dame, which already had negotiated a long-term deal with NBC.
Like Vito Cordeleon in the Godfather, the major conferences and Notre Dame issued ultimatums that increasingly the star struck NCAA could not refuse. Thus, in 2014 the NCAA reorganized once again using the fiction that they were giving student-athletes more of a voice. The stated intention, as set out on the NCAA’s website, was to “`better serve our members and most importantly, our student-athletes,’” but even NCAA President Mark Emmert had to admit that “`the new governance model represent[ed] a compromise” to allow the five super-conferences to largely establish and implement their own policies, including, as it has turned out, the imprimatur to largely police themselves.
Under the most recent reorganization, a presidential group comprised of representatives from the five super conference was created, which must approve any amendment before the Division I leadership body may even consider it. In addition, the Division I 24 member voting group must include 20 university and college presidents that have major football programs, plus one additional athletic director. For the first time, a student-athlete was given a seat, along with a faculty member, and a woman administrator. In addition, a Council was created to conduct the day-to-day business involving Division I matters, but at least 60 percent of those members must be athletic directors. Thus, the token student, the token faculty member, and the token woman have no real power under this governing structure. Moreover, none of these leadership bodies has any power independent of the five major conferences and Notre Dame.
As a result, those super-conference athletic programs and Notre Dame are able to control television contracts, conference memberships, the definition of amateurism, behavior of athletes and coaches, and other major collegiate sports-related issues. Such unfettered power is why, even before the 2014 governance was implemented, the NCAA and its Division IA members were compared to “cartels” or the “mafia.” In commenting about the NCAA’s reorganization, Sally Jenkins of the Washington Post observed “you can’t help people who won’t help themselves… [They are like] staggering drunks who won’t let go of the bottle... Athletic directors are not the people who can solve these problems. They are the people who created them.”
North Carolina’s Massive Academic Fraud Scheme Escapes NCAA Sanctions
What happened to North Carolina, especially to its hallowed basketball program, in perpetuating academic fraud over many years without being sanctioned, is a testament to the power of super-conference members and the NCAA’s growing irrelevancy. The NCAA’s primary function—in addition to allowing super conference members to make more money and pretty much do as they please—is to enforce the rules on amateurism to ensure that Division I athletic programs do not have to compensate student-athletes for most of the revenues they generate. To make matters worse, the NCAA employs a double-standard when it is enforcing its rules against super conference members like North Carolina, as opposed to other athletic programs.
The North Carolina academic fraud story is a travesty, but unfortunately it is not extraordinary, certainly not in context of the many other national scandals that have been allowed to fester in major college athletic programs in recent years. Penn State, Florida State, Auburn, Notre Dame, University of Southern California, Syracuse, Miami, and Oklahoma State are just some of the multiple offenders. Undoubtedly, many other programs also are guilty of serious transgressions that were never revealed or only revealed in part.
The academic fraud that was perpetrated in North Carolina’s basketball program started at least as far back as 1997, while the much beloved Dean Smith was still in charge. It evolved into a national scandal during the Roy Williams era, which began in 2003. Since he took over the program, Williams’ players have been high profile culprits and victims in the largest academic scandal ever uncovered at a university or college. Coach Williams continues to proclaim, however, that neither he nor anyone associated with North Carolina basketball knew anything about what was happening or did anything wrong, although, like President Nixon, he now vaguely admits that mistakes were made.
Those mistakes included sitting by while dozens of his players received passing grades in courses they never attended and did little or no work for. In many instances, those players turned in papers and other assignments that so-called academic counselors at the University had prepared for them. Influential segments of the university wanted star athletes to focus on sports without losing their eligibility should they either: fail too many courses; or their grade point averages dipped below 2.0 (C average) in an academic culture in which grade inflation guarantees that a vast majority of college students attain at least a 3.0 (B average).
During all those years—and even while the athletic department was being investigated for academic fraud—the school and its alumni were busy bragging about the high grades and graduation rates of UNC’s student-athletes. North Carolina chose to ignore the compelling connection between widespread cheating and the academic success of its athletes. The New York Times’ Michael Powell aptly described that fraud as one “of spectacular proportions… [F]or two decades… the university provided fake classes for many hundreds of student-athletes, most of them basketball and football players” who were African-Americans. In the process, many of the complicit athletes were deprived of a college education.
When Coach Williams returned to North Carolina from the University of Kansas stories about academic fraud involving college athletes already were widespread in the media. The danger of this type of academic cheating was well known in the sports world even then. So-called academic counselors for student-athletes at numerous colleges were being accused of facilitating this type of fraud. Thus, when Coach Williams took the unusual step of bringing Wayne Walden, who had served as an academic counselor for the men’s basketball team at Kansas, with him to perform the same academic support functions for Tar Heel athletes, this should have raised a red flag.
Walden became one of the central figures in the academic cheating scandal at UNC. According to Powell, once he was at UNC Walden “steer[ed] basketball players to these [fraudulent] classes” for nearly ten years. While academic cheating was not uncommon at other universities and colleges with major football or basketball programs, North Carolina’s academic transgressions cascaded into a national scandal in 2013. In large part this was due to the school’s reputation for academic excellence, the halo-effect of Dean Smith, and the apparent audacity, comprehensiveness, and longevity of the academic fraud.
These wrongdoings were not limited to the UNC basketball program. Football players apparently were involved in a greater number of academic offenses, but football teams have many more players than basketball teams. This fraud also involved some non-athletes, but it mostly involved African-American athletes, who were trying to achieve the American dream through athletics.
According to the New York Times the transgressions were centered in the African and Afro-American Studies Department, which “presided over … `a shadow curriculum’ designed to help struggling students – many of them athletes – stay afloat.” Audits revealed that there were “problems with dozens of courses and …as many as 560 unauthorized grade changes were suspected of having been made… dating back to 1997.” In 2012 a university reading specialist, Marie Willingham, went public contending that many of the athletes she had worked with over the years were unable to “read at anything close to college level.” Willingham also acknowledge that she and other academic counselors advised athletes to take these fraudulent classes.
The university’s response was underwhelming. It promised to direct staff to monitor courses to ensure that they were actually being held. No university officials or head coaches were held accountable. Instead, the University focused its wrath on Willingham for publicly blowing the whistle on the widespread academic fraud. She not only lost her part-time university position, but she also was fired from her job as a grade school teacher. Eventually Willingham obtained a $335,000 settlement from the University, but as part of that agreement UNC did not have to admit to any wrongdoing—and, of course, it never has made such an admission.
Both the University and Coach Williams continued to plead ignorance or issued unconvincing denials. UNC’s provost sanctimoniously pretended that “there had been no way to anticipate such behavior … in an institution that relies on the professionalism and basic good will of its employees.” He added that the universities were the real victims of these transgressions because they could no “longer operate on trust.” The New York Times Editorial Board saw the problem differently. North Carolina, “`[many other] schools, the conferences, and the N.C.A.A…. are engaging in exploitation [of student-athletes]…’”
The NCAA’s Convoluted Response
Eventually the NCAA charged North Carolina with institutional negligence (lack of control) in allowing these academic violations to occur. What concerned the NCAA investigators was not the fraud or the educational damage to the athletes involved, but rather the strong possibility that those athletes violated the rules on amateurism by receiving special benefits that regular students did not. To the public, this appeared to be a bizarre twist on the notion that North Carolina was cheating its competitors at other universities and colleges by cheating, which normally is the standard in other sports for these types of infractions.
The first two notices did not even mention the vaunted basketball program, which was strange. At North Carolina men’s basketball is more important than any other sport by far, including football. Thus, it seemed as if the NCAA intended for the powerful basketball program to escape and serious sanctions, despite its obvious involvement in the scandal. It was not until the third notice of allegations that the basketball program became the center of attention.
The third notice focused almost exclusively on Roy Williams’ program, placing his basketball legacy in jeopardy. If the NCAA concluded that players on Williams’ 2005 and 2009 championship teams received extra benefits, those championships could be voided. The University of Maryland’s president, Wallace Loh—whose school had left the ACC acrimoniously a couple of years ago—opined UNC basketball deserved the so-called “death penalty” that in 1986 had effectively destroyed Southern Methodist University’s football program.
Neither Coach Williams nor other UNC officials disputed the NCAA’s allegations. Instead, athletic director Bubba Cunningham argued that the NCAA’s charges against the basketball program should be withdrawn because the new allegations had amended the original charges, which supposedly violated NCAA bylaws. That legal ploy suggested the University understood that if it were to prevail, it would be best not to argue about the truthfulness of the NCAA’s allegations.
Ultimately, although the NCAA’s Committee on Infractions found what had happened at North Carolina was “troubling,” it issued a convoluted ruling about sanctions that defied logic and suggested bad faith. The Committee’s chair, Southeastern Conference commissioner Greg Sankey, explained that under its bylaws the “NCAA defers to member schools to determine whether academic fraud occurred…” Moreover, such fraud could only exist if North Carolina athletes received a benefit that other students did not receive. Since the academic fraud encompassed non-athletes, there was no violation of NCAA rules. Thus, the basketball programs 2005 and 2009 national championship seasons would be unaffected, so that with the national championship the team won in 2016, Coach Williams still would have one more than Dean Smith, and remain in the college basketball hall of fame.
There are two problems with the NCAA’s ruling, beyond the fact that on its face it seems preposterous. First, it makes a mockery of the NCAA’s carefully crafted illusion of the student-athlete. Both UNC and the NCAA not only failed to ensure that these students received an education in return for their athletic contributions, but they facilitated the cheating that led to those failures by looking the other way.
Second, if there actually was no violation of NCAA rules, how does one explain the severe penalty the California Institute of Technology (Caltech) received for unintentionally committing a far more minor infraction? Caltech is a Division III program that has earned its reputation for intercollegiate sports futility. The university is a world-renown academic institution that gives out no athletic scholarships. Every student who attends is allowed to sample classes at the beginning of each semester. For administrative convenience, students are considered part-time until their course registrations are finalized. Allowing students such flexibility is one of the university’s guiding academic principles.
Between 2007 and 2010, about 30 Caltech athletes chose to sample classes like any other students. Under NCAA arbitrary rules, however, these athletes were deemed academically ineligible to play any intercollegiate sports. When astonished school officials realized that they were in technical violation of the rules, they promptly reported the situation to the NCAA. The NCAA chose to impose a steep penalty anyway, placing the athletic program on three years probation for failing to exercise institutional control. Their punishment also included a one-year ban on playing in post-season games, although as columnist Norman Chad pointed out, it was “akin to forbidding Pope Benedict XVI from breakdancing.”
What the NCAA did to Caltech borders on the absurd, but it provides a compelling contrast to the manufactured rationale that was used to conclude North Carolina did not similarly fail to exercise institutional control when it allowed dozens—perhaps hundreds—of student-athletes to take fake courses. What should have happened was easy to figure out: Caltech deserved a warning, while North Carolina deserved to be sanctioned severely. Instead, the NCAA did the exact opposite in order to protect one of the nation’s premiere men’s college basketball teams.
NCAA College Basketball Recruiting Mess: Show Me the Money
Men’s college basketball played at the major conference level finally is being recognized for the sleazy mess it became long ago. There is no doubt that the basketball is entertaining to many sports fans, but as the FBI has helped establish—and even the NCAA is finally admitting—the game needs to be fixed. Unfortunately, expecting former secretary of state and collegiate sports fan, Condoleeza Rice—and a group made up of college basketball insiders—to do what is best for student-athletes and the public is unrealistic, especially since the super-conferences continue to have substantial influence and final say over any NCAA actions affecting them.
Creating a task force or special committee made up of friendly faces is a go-to tactic when an organization wants to try to control and limit the damage from an ongoing scandal of its own making. That is what the NFL did —and continues to do—in order to try to manage the issue of player brain damage by manufacturing distortions, deceptions, and lies. The latest college basketball fiasco is different, though. It was largely unearthed and publicized because of a major FBI investigation. Usually only international sports cartels are subject to such broad-based American prosecutions. The federal government’s decision to invade what once was the NCAA’s private domain is another strong signal that the organization is becoming irrelevant.
The NCAA is hoping to stem its downward slide by issuing a self-serving report with Condoleeza Rice as the lead author to give the likely whitewash a modicum of credibility. The nature of the criminal activities associated with college basketball, played in the elite conferences that supply a vast majority of professional players, involve two critical aspects of the game. Both have major financial implications for the beneficiaries.
First, there is the recruitment process that helps to bankroll the programs at these elite basketball schools. It supplies the star players, which make all the various revenue streams possible, especially the lucrative television deals. For years there have been countless stories focusing on the unethical, illegal, and/or illicit practices in the college basketball and football recruitment process. These exposes have involved under-the-table money, prostitutes and other adult entertainment, fancy dinners, inflated and false promises, and violations of NCAA rules—all in order to obtain the most coveted prospects. In response, the NCAA and the schools themselves have done very little—beyond issuing self-serving investigative reports and mostly anemic sanctions—to police or to otherwise correct the massive malfeasance and misfeasance perpetrated by high-profile college and university athletic departments, coaches specifically designated to “handle” recruitment, and shady alumni.
Second, there is the corrupt process of signing star high school and collegiate athletes to professional basketball contracts, as well as all the endorsements and other financial dealings that professional players benefit from. It is here where there is a divergence of interests between the college and university athletic departments, including their NCAA minions, versus the players and their various unofficial representatives.
The purpose of recruitment is to steer players towards college athletic careers that will benefit men’s collegiate basketball programs. In most instances, though, it is in the financial interest of these players, through their representatives, to sign professional contracts before they complete their college eligibility, and too often after their first and only year in college. Thus, it is not surprising that implicit and even explicit arrangements are made frequently in which players promise to use a particular agent, agency, or other player representative to represent them in negotiating professional contracts and endorsement deals in exchange for providing immediate benefits to the players or people the players care about, such as their family members or significant others.
Too often AAU and high school and college coaches, parents, relatives, and other people who are close to the players receive money or other benefits in order to convince the athletes to sign with an agent/agency, or a company, such as Adidas, Under Armour, or Nike, that wants those athletes to wear and thus advertise their shoes and other basketball merchandise. When those agreements are negotiated or signed while a player is still in college—or about to go to college—the athletes involved are supposed to lose their eligibility, while the people who offered them money or other benefits may be subject to criminal prosecution. In addition, because of the NCAA, there are laws in almost every state and the District of Columbia that make it illegal for an agent to represent a basketball player who is still a student-athlete in college. (See Blog 5: How the NCAA and a National Lawyers Group Made It a Crime to Represent College Athletes)
Nevertheless, it has been relatively easy for the high school and college athletes, agents, and shoe companies and other corporate sponsors to break the rules. The pay-offs for acting illicitly or illegally can be substantial for all the offending parties. Even average NBA players earn tens of millions of dollars in their careers. Thus, it is no surprise that Duke’s head basketball coach, Mike Krzyzewski, has complained, “Before these kids ever come to us, we are not the only ones recruiting these youngsters.”
These types of problems do not exist with athletes who are willing to give up their so-called amateur status, especially Olympic athletes and young basketball players who sign professional contracts and choose not to play in college. All of these athletes may sign contracts with agents and benefit from endorsement deals without there being any penalty to them or to the individuals who sign them to contracts. With Olympic athletes the money they receive is placed in a trust, which can be used for expenses while they are competing as so-called amateurs, and then the money may be spent as they like once they turn professional or retire from Olympic athletics.
If the NCAA had employed the Olympic model for student-athletes, the FBI investigation would have been pointless. Most of the alleged illegal activities of those suspects would no longer be considered crimes. Also, there would be much less incentive for agents or shoe companies to pay assistant coaches, family members, or players to get the athletes to sign agent contracts and endorsement deals, at least no more incentive than in any other situation where highly talented entertainers are involved.
One and Done Rules & Other Problems Will be Difficult to Solve
Unfortunately, even if the NCAA were to surprise us and arrive at a reasonably acceptable solution for dealing with the bribes and other under-the-table payouts to standout basketball recruits—and all the people who are thought to be able to influence their decisions—that alone would not make much of a difference. There are a myriad of problems that the NCAA and its leadership have neglected or made much worse in collegiate sports. Like FIFA, the IOC, and the NFL, the organization’s infrastructure is rotten and needs to be replaced.
Also, the narrow solution that Condoleeza Rice will advocate for might not even adequately address the related problem of what to do about young, but very talented players, who opt out of college after one or two years of eligibility. Despite all the graft and corruption surrounding elite college basketball players, the NCAA appears to be trying to further to professionalize the college game by extending the requirement that a player spend at least one full year in college to at least two years, and maybe more. The utopian deception is that somehow an extra year or two of college will provide these elite players with better educational opportunities, which appears to be nonsense given the money and effort that has to be expended already to help many of these star athletes pass their college courses. The primary reason big time basketball programs want to force more of these elite players to stay longer is to ensure that those teams can successfully recruit the very best—and most lucrative—players.
Beyond the fact that any such restrictions should have been disallowed as improper restraints on trade long ago—but are still permitted—NBA owners would probably oppose such a plan because it does not appear to be in their financial interests. NBA teams like to be able to sign extremely talented high school players. Furthermore, the league has been busy promoting its development league, which now has Gatorade as its prime sponsor. At the same time, many elite men’s collegiate basketball programs could be concerned that under the new eligibility rules too many more players would decide to skip college altogether. Instead, assuming they were not yet good enough to secure an NBA contract immediately, those players could sign up with the NBA’s development league or some foreign professional league.
In order to solve the many problems that major college athletics present, including widespread academic fraud, bribery, pay-offs, and other graft, there needs to be a seismic shift. The authority to monitor, police, and sanction illicit behaviors by athletic departments, alumni, coaches and athletes should be removed from the control of the super-conferences and Notre Dame. This can be achieved in two ways. First, the NCAA could be reorganized, once again, with a view towards making it more like the Knight Commission. The problem with that approach is that the organization still would be the NCAA which—despite a long history and numerous reorganizations—has always failed to strike the proper educational and fiscal balance between athletics and academics, and to properly police athletic departments, alumni, coaches and athletes.
The preferable approach would be to dissolve the NCAA and replace it with a newly-formed governmental entity or a new entity established or designated by Congress to monitor, police, and sanction colleges, universities, conferences, athletic departments, alumni, coaches, and athletes that fail to follow standards, regulations, and rules that the new entity would establish. A new entity composed mainly of educators without a vested interest in big time college athletics would allow for a fresh start after many decades of futility. (See also Blog 9: National Health Commission On Sports)
LEGAL FICTIONS UNDERMINING PROFESSIONAL AND COLLEGIATE SPORTS ON BEHALF OF CARTELS©
By John Weston Parry
More than anything else what allows sports cartels to thrive in the United States at the expense of the public interest is how our antitrust, liability, and criminal laws are applied to professional and intercollegiate sports. The outright antitrust exemption for baseball, the partial exemptions for football and other professional sports, shield laws for Olympic organizations, and the dismaying embrace of the NCAA’s Orwellian concepts of the student-athlete and amateurism have established dysfunctional precedents and systems of monitoring and enforcement that are based on legal fictions. Providing the privilege of self-governance for these sports cartels never made much sense to begin with. Unfortunately, over time the resulting dysfunctions have become even more outrageous as the leading sports organizations have grown into politically astute domestic and global corporate giants that too often treat their host communities and fans with contempt and jeopardize the health of the athletes who make them so much money.
Professional Team Sports: Exceptions Make the Rules
Antitrust Exemptions and Enforcement Privileges
In the United States, the antitrust laws—and how they are interpreted and enforced—have provided substantially reduced liability for major professional team sports when they engage in various activities that might otherwise be viewed as illegal restraints of trade. Baseball has a total exemption. This legal fiction exists due to a 1922 U.S. Supreme Court decision. Oliver Wendell Homes and his brethren unanimously concluded—wink, wink—that major league teams in the post-World War I era were not engaged in interstate commerce, even though those teams played their games in cities located in many different states and the District of Columbia.
Subsequent judicial decisions stopped short of providing the same absolute antitrust exemption for other major professional sports leagues in this country, which were intentionally structured to operate very similarly to baseball. That judicial distinction for no apparent legal reason meant in 2010 when the NFL tried to argue that that it should be viewed as 32 independently-owned teams, the highest court of the land issued a unanimous opinion, reaffirming that the NFL—and presumably the NBA and NHL— may not share in baseball’s carte blanche antitrust privileges.
Nevertheless, substantial interpretive allowances have made antitrust enforcement against those other professional leagues much less likely and proof of violations far more elusive as compared to most other American businesses. Collectively, Major League Baseball (MLB) and the other major American professional sports leagues have been allowed to operate like monopolies in carrying out fundamental aspects of their business models. Yet, despite the many privileges given to and the transgressions committed by our professional leagues, arguably the NCAA, as is discussed later, has become the worst American antitrust scofflaw, followed closely by Olympic organizations.
Over many decades meaningful competition for our four major professional sports leagues has been rare. No alternative leagues have emerged as serious contenders for market shares since the mergers of the American Basketball Association into the NBA in 1976, the World Hockey Association into the NHL in 1979, and the collapse of the Trump-inspired United States Football League in 1985. Owner-driven collusion to hold down player salaries and benefits, while not particularly successful in recent years, have been revealed in the NFL and appear to exist, to a certain extent, in the other major sports leagues as well.
Nonetheless, this type of abuse has not been subject to much legal scrutiny because in recent years the violations have been largely ineffective due to the owners themselves and the early brilliance of labor-lawyer and MLB Players Association founder and chief executive, Marvin Miller. As the professional football teams in Washington and Dallas have illustrated repeatedly, for many owners the incentive for signing the most valuable talent, especially for the teams with the largest bank rolls, continues to be greater than the incentive for supporting owner-orchestrated collusion. For this reason the not so laissez-faire free market appears to produce a relatively balanced outcome much of the time when it comes to salaries and other monetary benefits for the players.
Yet, as compared to international soccer, our major professional team sports have many more economic restrictions, and virtually all of them favor the owners and leagues. Furthermore, mostly through the work of their typically competent and occasionally exceptional commissioners, who usually serve their owners well at least financially, all four major sports leagues compel their team owners to promote competitive balance. They do this in large part— and thus violate the spirit of our antitrust laws — by allowing, with minor variations, the worst teams to draft the best new players first, rather than allowing those players to negotiate with any team they choose.
In the NBA, there is a draft lottery, but only the worst teams are included. The more they lose the better the chances are that they will select at the top of the draft and be guaranteed a lottery pick for having missed the playoffs. Furthermore, the NFL artificially dampens salaries for players in their first four years in the league, and all the leagues, in different ways, restrain players who wish to sign with new teams, particularly early in their professional careers.
In basketball and football, the NBA and NFL commissioners working in tandem with the NCAA, also have placed serious age restrictions on high school players, who otherwise would be talented enough to make the jump directly to the professional ranks. Here the common corporate interest is in allowing the major college sports conferences to serve as free training grounds for those two professional leagues, while ensuring that many of the most lucrative college programs continue to have a steady supply of high quality players for way below market value.
These eligibility restrictions based on age have little to do with encouraging elite athletes to get a college education and everything to do with the economic welfare of the two leagues, their teams, and the major intercollegiate athletic departments and programs. One can only imagine the public and legal outcry if performing artists were prohibited from becoming professionals until after they had reached a certain age in order to strongly encourage them to perform in college without being paid a salary.
Some of the public interest clamor for enforcing the antitrust laws against teams in the major professional leagues has been diluted because both management and labor now tend to benefit, at least financially, from the monopolistic practices that generate escalating revenues for owners and players alike. Occasionally, the players will charge collusion or unfair business practices, which still exist, but this is usually a strategy for improving their positions in the collective bargaining process. Serious legal challenges have been relatively rare, since neither side wants to disturb the geese that lay the golden eggs. A few years ago, even when it was clearly documented that the NFL owners were engaging in collusion, the players union ultimately chose to look the other way in exchange for receiving additional financial benefits as part of the collective bargaining agreement.
Generally, today’s owners and players agree more than they disagree. In 2016, both the MLB and NBA reached mutually beneficial contractual arrangements that allow both the owners and labor to share in the accelerating revenues. The NFL and NHL have existing agreements that do not expire until 2020 and 2022, respectively. Thus, it is not surprising that in all four major professional team sports, players have voluntarily agreed to place substantial limits on free agency to ensure the financial health of their respective leagues and to generate more revenues for themselves. Although there have been notable exceptions, the players generally have not been the primary victims of these sports cartels during the Twenty First Century.
The real victims of the leagues’ monopolistic practices are the fans and local communities that continue to pay more and more for the privilege of watching games or having or keeping a professional team in their metropolitan areas. The price for tickets and the competition to obtain professional sports teams have been artificially inflated because the leagues have been given excessive control of the supply and demand, which is another way of saying they are violating the intent of our antitrust laws.
Criminal and Civil Wrongdoings
While antitrust is the most frequent area in which American laws are marginalized in favor of leagues and owners of sports franchises, often law enforcement and the courts also apply the laws differently when athletes and coaches commit or are accused of committing civil or criminal wrongdoings. Traditionally, the major professional sports leagues, much like the N.C.A.A., have been ceded considerable discretion to enforce their own self-serving rules of conduct without interference from the courts. Furthermore, the legal concept known as assumption of risk has been interpreted broadly to favor teams, leagues, and sports organizations when there have been injuries to athletes or fans during games and other competitions.
In recent years, however, there have been some fractures and fissures in these legal privileges for professional and collegiate athletes and coaches, especially in matters involving sexual and domestic abuse against women and children. Looking the other way or giving special treatment to those sports celebrities in serious criminal matters has become far less socially acceptable, although it continues to happen. Given the positive contributions in recent years made by the Justice Department and the Department of Education's Office of Civil Rights, especially in investigating and prosecuting Title IX-related violations of athletes and coaches, it will be interesting to see what happens to such enforcement under the Trump Administration. The signs are not good for victims.
Traditionally courts have been even more reluctant to become involved in on-the-field matters, but increasingly they are being asked to do so. Athlete-on-athlete violence that used to be viewed as being the exclusive domains of the given sport that was involved is on occasion being prosecuted criminally. The Economist has described this legal evolution as the creation of new “boundaries of …. prosecutorial discretion.” Within the National Hockey League, for example, violence with fists continues to be deemed legally acceptable, but using a hockey stick as a weapon is not; nor is deliberately smashing someone’s head into the ice.
Nonetheless, even now most North American courts remain reluctant to interfere with self-serving administrative punishments of sports leagues when players violate civilized norms of society and cause serious injuries to their opponents. Perhaps the most notable example of such deference to league policies occurred in the over-hyped scandal known as "deflategate." While it did not involve criminal activities per se, the NFL through its Commissioner, Roger Goodell, used that incident to make a blatant and largely successful power play to re-establish control over player conduct matters without court interference.
Goodell issued a harsh and arbitrary penalty against one of the league's most visible and popular players, New England quarterback Tom Brady. The Commissioner's decision was based largely on subjective impressions and circumstantial evidence — which seemed to have been circumstantial at best — that Brady had instructed team employees to deliberately deflate the air pressure in the footballs used during the 2015 AFC Championship Game to make it easier for him to throw.
When the federal courts refused to overturn the Commissioner's arbitrary and legally-deficient ruling, the league was able to wrest control of personal conduct matters from outside interference, not only from the player's union but also the judiciary. Deflategate might have seemed like a minor squable between colleagues who share humongous revenues. However, the precedent is likely to be destabilizing for serious personal conduct matters, such as sexual assaults, domestic violence, drugs, and conflicts of interest by team doctors. Goodell has demonstrated that, at least until the current CBA concludes in 2020, he can act unfairly in player personal conduct matters without serious consequences due to the acquiescence of ownership.
The NCAA, Amateurism, Student-Athletes, and the Law
In the words of former Washington Post columnist Tracee Hamilton, “[i]t is impossible to be surprised by the dreadful hubris and hypocrisy of college sports, which seem a daily occurrence….” While some of this corruption has been going on since the early 1900’s, it was institutionalized beginning in 1951 when Walter Byers became the first executive director of the NCAA. For nearly forty years Byers established his fiefdom, which later he would acknowledge was a “cartel.” Byers was instrumental in the cartel's creation and expansion by inventing and exploiting the concept of the “student-athlete” and then using his influence to dilute the impact of Title IX for women athletes. He created an amoral agenda, which was made even worse by the NCAA officials who followed him.
The massive problems that have been uncovered involving the NCAA and intercollegiate athletics during the Twenty First Century have centered on, but not been limited to, the dichotomy between: highly commercialized major Division I athletic programs, especially those that now populate the super-conferences in football and basketball; and noncommercial sports, which have no scholarships, tend to lack sufficient funding, and are at risk of being discontinued. Major intercollegiate sports have been and continue to be run as or like big businesses. Hypocritically, though, under the misleading banner of amateurism, those with the talent—the student-athletes—have been prohibited from receiving payments and many other benefits beyond tuition and recently some—but not all—essential related expenses.
At the same time, head coaches and their top assistants—like corporate leaders and their chief underlings—tend to be highly paid, oftentimes excessively so. It is common—and thus no longer surprising—for a major super conference football or basketball coaches to receive considerably more in compensation than the often highly paid university and college presidents to whom they ultimately report. In more recent years, the athletic directors at schools with these inflated quasi-professional programs have been receiving extremely high salaries as well for their non-academic revenue-generating contributions.
Unfortunately, when winning, making money, promoting sports-related programs, and increasing alumnae donations from athletes and sports fans drive these universities and colleges, education inevitably suffers, sometimes terribly so. Rarely does this homage to big time sports occur without negative consequences for the athletes, academic programs, student bodies, nearby communities, and general public.
Super-conference sports have many of the same trappings as professional franchises with respect to marketing, television contracts, shared revenues, and rules of operation with their league and conference members. Furthermore, as socially favored “non-profit” educational sports businesses, they have been insulated from American antitrust laws and other regulations, and largely exempt from taxation. In addition to commissioners, who protect and promote the interests of their conferences, these privileged programs have the NCAA and their member university and college presidents on call to perform yeoman public relations duties on their behalf.
Hypocrisy and plausible deniability have replaced academic and intellectual integrity when these major intercollegiate athletic programs are likely to benefit or appear at risk. Corruption, chaos, academic fraud, criminal behaviors, and deceit—in the pursuit of revenues—are the hallmarks of super-conference sports, which continue to be periodically reorganized within the NCAA to allow these transgressions to go largely unsupervised and unchecked. These sports businesses have compromised educational values at almost every Division I college and university. They even infect the most academically prestigious Division III schools, which supposedly do not have athletic scholarships, but nonetheless stretch the rules to provide full scholarships to students who happen to be elite athletes—wink, wink.
The NCAA’s notion of amateurism has been a bad joke perpetuated to ensure that all the adults involved can generate more revenues for themselves at the expense of the student-athletes. Even the once seemingly sacrosanct Heisman Trophy, given to the most distinguished college football player, on and off-the-field, has been transformed into a showcase of bad behaviors and the advantages of neglecting academics in favor of football and monetary glory. Criminal accusations, sexual violence, cover-ups, fraud, self-indulgence, self-promotion, and leaving college without a degree have become the trophy’s hallmarks for future generations, rather than an athletic legacy for future Supreme Court justices and other pillars of society.
While big time head coaches and athletic directors have been receiving kings’ ransoms for their services, until recently student-athletes have received tuition, room and board, but very little else—at least not legally—for supplying the essential ingredient without which most of the intercollegiate athletic department revenues would disappear: the athletic talent. That has changed slightly with the NCAA now allowing universities and colleges—with the permission and direction of their conferences—the option of providing stipends to pay for various incidentals of college living for these student-athletes.
While most of the super-conferences have approved this option in some form for all their student-athletes, other Division I universities and colleges, have tended to be more selective, often only providing it to student-athletes in the most popular sports usually basketball and/or football, and sometimes hockey, lacrosse, or baseball. This has created a new hierarchy that reflects the emphasis each university or college places on intercollegiate athletics, and the sports most important to them.
Not surprisingly, what constitutes the maximum allowable stipend differs from institution to institution, depending upon what the current athletic scholarships cover. By agreement, for the moment schools are deferring to guidelines created by the federal government to make these determinations. While the intent is to cover basic living expenses, the problem is that the stipend is presented as cash, which can be spent for a variety of purposes that are difficult to track. This gives the super-conference programs, which offer bigger stipends an advantage in recruitment, even if the total scholarship amounts are the same. Coaches—and athletic department personnel—however, have no such limitations on pay. They can be paid millions of dollars.
In addition, coaches, athletic departments, and colleges and universities are allowed to keep substantial revenues from various endorsement deals, which often involve merchandise, such as shoes and uniforms that coaches or school officials make their athletes wear. The NCAA has hundreds of millions of dollars in cash and other assets in reserve. Yet, if the student-athletes try to benefit similarly—even if it is to receive compensation when commercial enterprises use their names or likenesses—such actions, if discovered, typically result in their being suspended or even dismissed from their teams and having their scholarships revoked.
This, however, seems to be changing incrementally. A federal court in O’Bannon v. NCAA, found that the defendants had violated federal antitrust provisions by prohibiting college athletes from making a profit on the commercial uses of their images and likenesses. Beyond piercing the veil of amateurism as a legal defense, the judge tried to alter the economic landscape by replicating the Olympic model as a proposed solution for compensating college athletes. This would have allowed intercollegiate athletes to place their earnings in a trust that could be used for legitimate living expenses now with the rest to be available to them when they became full-time professionals or otherwise ended their amateur status.
The Ninth Circuit U.S. Court of Appeal, however, in reviewing the decision issued a compromise. The ruling became final in October 2016 when the U.S. Supreme Court refused to take the case. The high court's decision not to become involved meant that going forward the NCAA’s rule-making apparatus and decision-making, at least in the Ninth Circuit, would be subject to American antitrust laws. In addition, there was now an influential precedent for other jurisdictions to follow.
Nevertheless, that compromise seems to have pressured the NCAA into agreeing to a settlement of over $200 million to compensate former college athletes for not providing them with fair and adequate scholarships. What was even more troubling about the agreement, however, is that the Associated Press reported that ot would be funded from "NCAA reserves... No school or conference will be required to contribute." This financial largesse raises two important questions: just how much money does the NCAA have at its disposal and how much of it came from the schools and conferences it is supposed to monitor and discipline?
In addition, the student-athletes legal fiction remains in place. Going forward what the NCAA must allow universities and colleges to provide their student-athletes, if they so choose, continues to be narrowly limited to scholarships that cover reasonable expenses related to attending college. Since health-care is a cost typically born by students, and not viewed as an essential educational expense, the O’Bannon decision leaves that critical issue in the selfish hands of the NCAA and the various athletic conferences to determine.
Currently, the NCAA does not require sponsoring schools to pay the medical bills of their student-athletes, although the NCAA does not prohibit it either. Typically, though, student-athletes must cover health costs with their own insurance. Moreover if these athletes should incur long-term or catastrophic injuries, there is little expectation that the sponsoring schools will compensate them for their care or lost earnings potential.
As a result, elite college football players, like LSU and Stanford running backs, Leonard Fournette and Christian McCaffrey, chose to make the wise career decisions not to play for their college teams in much publicized bowl games. This avoided the possibility of those players being injured and thus jeopardizing their likely multi-million dollar pay days. Unfortunately, very few college athletes have the realistic opportunity to make such a choice. In almost every other circumstance college players are compelled to risk their bodies, and sometimes their careers, without any financial or insurance protections.
The NCAA Should be Dismantled
Under the warped leadership of the NCAA, hypocrisy, commercialization, greed, and a fundamental denigration of fundamental values have been given free reign. The super conferences, through member university and college athletic departments, have transformed football, basketball, and many other men's sports, including hockey, lacrosse, soccer, baseball, and wrestling, into state and university supported business enterprises with little deference to academics and moral values. Many college students at those schools may be highly entertained by those sports, but the student bodies, their parents, and the public are being shortchanged, over-charged, and over-taxed if college’s primary mission is to educate and train students to become good citizens with good jobs.
Because of the NCAA and its protective legal shield, there is little or no accountability. With all their bad behaviors, even our professional leagues—with the possible exception of the NFL—are less tarnished and more accountable than big time collegiate sports. Moreover, these dysfunctional values tend to undermine non-super-conference universities and colleges as well, including many with the best academic reputations.
Unfortunately, there can be no meaningful progress in reestablishing educational values in intercollegiate sports, as long as the NCAA continues to control and oversee the agenda. In John Feinstein’s view, the NCAA “has worked out about as well as [Neville] Chamberlain…in 1938…. It is time to go back to square one.” Under its own criteria, the NCAA has proven to be organizationally and functionally incapable of exercising institutional control over its own staff, much less member universities and colleges athletic departments. Thus, the NCAA deserves its own rarely imposed “death penalty” for tolerating and promoting misfeasance, malfeasance, and outright corruption.
Doing away with athletic departments and placing oversight in the hands of academic faculty is an idea that has percolated for years, but is unrealistic and impractical for much of the collegiate athletic world, with or without the NCAA’s presence. As long as revenue-generation, trying to win at all cost, and powerful alumnae are viewed as essential components of major intercollegiate athletic programs, athletic departments or similar structures with different names will continue to thrive and exert their influence on campuses. Federal guidance and oversight, including new laws and regulations, and more active judicial involvement are all needed to constrain and ameliorate the social pathologies, corruption, and incentives to misbehave that characterize major intercollegiate sports.