Russell "Rusty" Hedges spent a successful career as an attorney and law firm partner, and has been an enthusiastic University of Tennessee sports fan. We're honored to provide our platform for his insights.
March Madness 2024 is on with the Final Four teams playing tomorrow. There’s a lot of national excitement around this tournament of college basketball teams, and I used to get excited too. But not anymore and for a painful reason.
It started back in the Fall of 1999 when my son shared what his high school coach said that day to his student athletes. As I recall, it was, “Slavery still exists in America -- it's called college sports.”
That’s some strong language, right? But was my son’s coach wrong? Let’s find out.
Remember that the NCAA was created in 1906 and primarily for a noble reason; to address the need for college football player safety rules. This was also about the time when we as a nation began making idols of paid professional sports players.
Image Credit: www.ncaa.org
The NCAA has since grown and evolved into a large, sophisticated, and wealthy organization that annually impacts approximately 500,000 student athletes across 1,100 colleges and universities. The NCAA’s primary focus is now organizing athletic events, for which it generates an annual income of over a billion dollars and the schools each generate millions of dollars annually. March Madness is the NCAA’s best known and most profitable tournament. These money-making events wouldn’t exist, obviously, without the performance of these student athletes.
Hundreds of thousands of hopeful student athletes and their families understand the NCAA is the feeder system and gateway for paid professional sports. But the gate is narrow and statistically few pass through. So, what do these student athletes get from these millions and billions of dollars being generated by their efforts beyond being teased with the hope of a professional sports contract?
Legally, until June 21, 2021, very little. That’s when the United States Supreme Court issued its unanimous decision of NCAA v. Alston, which said that our nation’s antitrust laws applied to the NCAA and that the restrictions addressed in that case were in violation of those laws. In his concurring opinion, Justice Kavanaugh viewed the NCAA’s restrictions on a student athlete’s ability to earn money by engaging in college sports as a violation of our antitrust laws. Justice Kavanaugh set out many of the issues that need to be resolved. Using a carrot and stick approach, he points out that litigation is not the only way the NCAA can deal with these violations, while underscoring “the NCAA is not above the law.”
What has the NCAA done since to begin correcting these antitrust violations? Virtually nothing. In fact, just the opposite, when it recently attempted to enforce their rules against several universities. The University of Tennessee, according to a story leaked to the New York Times, was being investigated for NIL (name, image, likeness) violations. The UT Chancellor and Athletic Director released statements condemning the NCAA's actions and the Attorney Generals of Tennessee and Virginia filed antitrust lawsuits against the NCAA, which according to Justice Kavanaugh, have a high degree of being successful. Recently a Federal District Judge granted a temporary restraining order against the NCAA, preventing it from enforcing its NIL rules. These lawsuits, while not the preferred method of fixing the NCAA’s violations, are entirely consistent with Justice Kavanaugh’s opinion.
Why would the NCAA prefer to go to court instead of adopting an ethic of mutuality and redesigning their system to include the student athletes as stakeholders that financially benefit from their own work? Reading the book Better Capitalism I learned “plantation economics is one person or group destructively exploiting or wielding control over another and/or resources” and that “a plantation system is any human construct that creates and/or permits inequities in support of plantation economics.” In a word, “Greed.”
Thinking back, sadly, my son’s coach was right. And now that the secret is out, even broadcasted by our United States Supreme Court, we collectively need to acknowledge that the NCAA is running a plantation system. Here, we do the NCAA a kindness by acknowledging that reality. We also do it a kindness by offering actionable steps toward a good fix and way out of its abusive relationship with our nation’s student athletes.
What’s a better economic model for college athletics? I offer three doable steps toward a better economic model the NCAA can start today, which are far easier and less expensive than litigation.
The first step is a culture change in the NCAA, which the schools will follow, that reflects players are equal partners in the economics of college sports. The NCAA must recognize it needs a better economic model or risk being dismantled by the courts, and in any better economic model the players have a right to explore and know their true values at any time during their college careers and recruitment.
Another step is eliminating the false smokescreen of amateurism that the NCAA uses to suppress student athletes. Justice Kavanaugh pointed to this smokescreen in his concurring opinion: “Specifically, the NCAA says that colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid.” Yes, read that again. The NCAA’s argument is circular, which as we all learned in college is, by definition, illogical. A student at a university can obtain a job and use their skills in any other field, while they are a student, without any repercussions. Only a student athlete is restricted in this manner. It’s long past time we give up the smokescreen of amateurism in support of a plantation system.
Image Credit: mbird
A third step is to give student athletes an equal voice at the table. Or, as they sing in Hamilton, “in the room where it happens.” It’s in everyone's best interest to have at least the primary stakeholders at the table as the economics of college athletics are reworked. If done properly it will result in a stronger product and better economic activity for all involved.
I look forward to the NCAA stepping back from and correcting its plantation system. Then I can get back to watching and enjoying some awesome student athletes joyfully doing what they love, while being able to share in the economic benefits of their hard work.
Tired of "profit is evil" vs "maximize my profit by exploiting others," as if those are the only two options?
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