I need you to put in writing, all your submissions answering the questions and also what should have said orally, transcribed in writing, from both sides and the mediator side.
file 1 is an Mediation Script – Introducing a Mediation Session
file 2 is my rubric for the assignment. remember this was suppose to be a mock trial but now its just a writing assignment.
file 3 and 4 are the scenarios that need to completed with the questions
if you need more pages let me know
Week 8 Assignment – Analysis of Direct and Indirect Costs Overview This
Week 8 Assignment – Analysis of Direct and Indirect Costs
This assignment is a continuation of the previous assignments where you will focus more on your company, Superstar Solar, Inc., and SolarCal. You will make more assumptions on specific types of costs.
In order to complete this assignment, refer to the scenario in the Introduction of New Solar Company Assignment where you discussed SolarCal and your company, as well as the scenarios and readings from previous weeks.
Refer to your Week 7 Activity where you created a Work Breakdown Structure to assist you in completing this assignment.
Refer to the rubric for this assignment to become familiar with how your paper will be graded.
Refer to scenarios and readings from previous weeks to complete this assignment.
Note: It is essential that you review your case analyses when completing this assignment.
Week 7 Case Analysis: Analysis of Direct Material and Other Direct Costs [DOCX].
Week 8 Case Analysis: Overhead Expenses and General and Administrative Expenses [DOCX].
Compare your company with SolarCal relative to the price of acquisition, semi-variable costs, and allocated direct and indirect costs of the solar power grids. Justify the response.
Write a 2–3 page paper in which you:
Analyze and provide detailed examples of the following costs that both Superstar Solar, Inc. and SolarCal will incur when contracting with the government.
Research and development.
General administrative expenses.
Analyze direct and indirect costs:
From the previous section, define and indicate which costs will be direct and indirect.
Research and development.
General and administrative expenses.
Research and development.
General and administrative expenses.
Discuss the following cost allocation methods and indicate which ones Superstar Solar, Inc., and SolarCal would use. Remember to provide a rationale for each of these methods.
Units of production method.
Machine hour method.
Direct labor hour method.
Direct labor cost method.
Refer to the rubric for this assignment to become familiar with how your paper will be graded.
Refer to scenarios and readings from previous weeks in order to complete this assignment.
Your assignment must follow these formatting requirements:
This course requires the use of Strayer Writing Standards. For assistance and information, please refer to the Strayer Writing Standards link in the left-hand menu of your course. Check with your professor for any additional instructions.
Use at least three quality resources in this assignment. Note: Wikipedia and similar websites do not qualify as quality resources. To get started, please refer to the library page for this course.
The Strayer University Library is a good source for quality resources.
The specific course learning outcome associated with this assignment is:
Evaluate company pricing and costs related to production.
Running head: MILESTONE ONE 1 3 MILESTONE ONE Milestone One FirstName LastName
Hi pls look at the files to complete this assignment as it is a big one. Originally this was Law Assignment Help Running head: MILESTONE ONE
The correlation between racism and police brutality in America.
Recent police shootings of African-Americans in the U.S. have sparked widespread protests and debates about the prevalence of systemic racism in law enforcement. Racialized practices and stereotypes are often used to advantage one group over another. The growing number of police shootings of African-Americans has sparked debate about the prevalence of systemic racism in law enforcement. It also highlights the need for a more comprehensive discussion about the country’s institutional and structural racism.
The data available for this topic are qualitative and quantitative. In 2020, there will likely be around a thousand police killings in the U.S. This is an increase from the killings that occurred last year. The statistics about the country’s police officers are very different from those of other developed nations. In the U.S., there have been 429 civilian shootings, with 88 African Americans (Schwartz, 2020). The number of fatal police shootings has increased significantly over the past few years. In 2018, there were 996 police shootings, and in 2019, over a hundred (Schwartz, 2020). The rate of fatal police shootings in the country was higher among African Americans than in other ethnic groups. This numerical data is accompanied by text, video, and audio that helps researchers understand concepts, opinions, or experiences of Americans within the study’s subgroup.
The history of racial inequality in America and the recent spike in clandestine killings provides qualitative and quantitative data on the topic. As such, there is no difficulty in finding research methodologies.
Having reliable data is very important for any research project, as it can help you identify a trend or a meaningful relationship. However, suppose you have a limited amount of data. In that case, it can limit the scope of your analysis and prevent you from achieving a meaningful relationship which limits the scope of discussion. Therefore, the number of units of study that you use depends on the type of research.
One of the essential components of a research project is a literature review based on different research methodologies, which is used to identify the scope of the work that has already been done. This process also builds the foundations for the researcher’s future research. However, if prior research is hard to find, then the research question is a hypothesis or in its infancy.
Your research questions should guide you in choosing the appropriate design and methodology for your study. Having a clear understanding of the concepts of qualitative and quantitative methods can help you make informed decisions. For instance, if your questions include terms such as “understand,” “generate,” and “explore,” it means that your study is qualitative. On the other hand, if your questions include terms such as “relate,” “compare,” and “correlate,” it means that your study is quantitative. Before you start working on the design of your study, make sure that you clearly understand the type of methodology that will work best for your project. This will help you determine which direction to go in. For instance, if you’re planning on collecting data from multiple sources, you must clearly understand how you will manage it.
Since the topic is well researched and provides qualitative and quantitative data, no changes are required.
Schwartz, S. A. (2020). Police brutality and racism in America. Explore (New York, NY), 16(5), 280.
School of Business and Economics RESIT BSP023 Operations Management Coursework Assignment –
School of Business and Economics
Coursework Assignment – Individual Report
Coursework Weight: 50%
Coursework Deadline(s): 2pm on 7th September 2022
In this assignment, you are asked to investigate and evaluate the operations, processes, and layout of a café at your own choice. You should visit your selected outlet to complete the evaluation tasks. Please note that your selected outlet could be located anywhere in the UK or abroad.
Below are just some examples of cafés you might visit.
Based on the visit, you need to write a report of 2,500(+/- 10%) words. Please include in your report the following areas.
a). Give a brief introduction to the specific outlet that you have observed. Describe its facilities, inputs/outputs, 4Vs, and the types of processes and layout. Argue whether the processes and layout are appropriate for the outlet. You should sketch out the layout/flow of the outlet.
b). Identify the “five performance objectives” of the outlet. Critically evaluate the performance of the outlet on each objective.
c). Select an important process in the outlet to evaluate their flows and steps. You should apply the process mapping technique to describe the process in detail, and state how the activities within the process relate to each other. Critically evaluate the flow of the process and try to challenge the current setting of activities, and find ways to improve the current process (e.g. based on Lean philosophy).
Use the models and frameworks from operations management to facilitate your analysis, such as 4Vs transformation model, process and layout design, process mapping, Lean operation, etc.
The coursework is designed to be as flexible as possible and a considerable degree of latitude will be given as to the scope and emphasis of your report. However, you must structure the report carefully, presenting data clearly and concisely, in tables, diagrams and appendices. Pure descriptive work adds little value. Ensure you present evidence and data to support the points you are presenting as well as giving a set of clear references.
Word Count and Format
The word count guide is 2,500(+/-10%) words. We will disregard anything you write above 2,750. Please state the word count on the first page of your assignment. The word count excludes any title page, the reference list at the end of the report, or any appendices. However, resist the temptation to put material that really should be in the main text into appendices. All material (academic and other) that you cite should be properly referenced in the text and in the reference list (in Harvard style) at the end of your report.
Coursework Marking Rubric
Please see the rubric at the end of this coursework brief for further details of the criteria against which you will be assessed, and descriptors of performance on the coursework for each assessment criterion.
The deadline date is provided above. One electronic copy must be uploaded to the submission point for the module on LEARN by the submission deadline.
You must use the following file naming convention for your work. You should not include your name anywhere on your assignment. You should also include the filename in the header of your assignment.
StudentNumber – Module code – Coursework component (e.g. B123456-20BSP123-CW1)
Your submission should be one document only (i.e. no loose appendices etc), preferably in Word or as a pdf (not scanned copy). If your assignment consists of different documents in varying formats you will need to embed them in a Word document or convert them to pdf and upload one document. The file size limit for your submission is 20MB.
IMPORTANT NOTE: You need to ensure you back up your coursework and any other important documents. Information on data storage can be found here: http://www.lboro.ac.uk/services/it/student/storage/.
Losing your work through technical failure is not a valid reason for a Mitigating Circumstances claim or a coursework extension request.
Extensions and Mitigating Circumstances
If you have any other problems with meeting the deadline for this coursework you may wish to request a 48-hour extension and/or submit a Mitigating Circumstances claim. This must be requested in advance via:
Coursework Extension Link: https://www.lboro.ac.uk/students/handbook/exams/extensions/
Mitigating Circumstances Link: https://www.lboro.ac.uk/students/handbook/exams/mitigating-circumstances/
Consultation and Feedback
The lecturers are available for consultation and queries between the class sessions and the submission deadline, e.g., on your selection of operation and the OM aspects to analyse or writing plan, but not supposed comment on a full draft version of reports.
Individual written feedback will be given on assessed coursework; Generic written feedback will be published on the module Learn page after results are published.
Provisional marks and feedback should be available by October 2022. All marks are provisional until ratified by the formal examination boards.
BSP023 Coursework Marking Rubric
Understanding of Theory and the practical issues (30)
Extent to which the meaningful connection between theory and practice is being made. The amount of effort to search and comprehend resources outside of module materials.
Connection between theory and practice is absent or inappropriate.
None, or very limited reading outside module materials
Insufficient attempt to understand theory and practice. Some connection is made but with obviously questionable or unclear aspects. Limited evidence of reading outside module materials.
Connection between theory and practice is generally appropriate but has few questionable aspects.
Insufficient evidence of reading outside module materials.
Connection is made showing a fair understanding of theory and practical issues. Minor misconceptions about the theory or the problem may be present. Evidence of reading outside module materials.
Connection is clearly made demonstrating an adequate understanding of both the theory and practical issues.
Evidence of significant reading outside module materials.
Connection is clearly made demonstrating a thorough understanding of both the theory and practical issues.
Evidence of substantial and significant reading outside module materials.
Analysis and findings (30)
Extent and accuracy of the application of concepts, models and frameworks in operations management leading to valid and convincing findings. The amount of critical thinking in the analysis.
Limited useful findings. The application of concepts, models and frameworks in operations management is absent or incorrect. Barely critical thinking.
Some useful and valid findings. The application of concepts, models and frameworks in operations management is insufficient or flawed. Little critical thinking.
Findings are generally valid, and are grounded on effectively researched information.
The application of concepts, models and frameworks in operations management is present, but with some minor flaws and a lack of critical thinking.
Logical and valid findings based on well-researched, reliable and competently interpreted information. The application of concepts, models and frameworks in operations management is apparent and mostly accurate, with clear critical thinking.
Logical and convincing findings obtained based on extensive, reliable and properly interpreted information. The application of concepts, models and frameworks in operations management is sufficient and accurate. Sufficient evidence of critical thinking.
Logical and convincing findings obtained based on extensive, reliable and properly interpreted information with significant and accurate application of concepts, models and frameworks in operations management. Substantive evidence of critical thinking.
Strength of links between analysis and recommendations. Relevance and usefulness of the recommendations.
Recommendations are invalid or meaningless for the practical issues. The discussion and justification are either absent or irrelevant. No critique of limitations.
Few recommendations are meaningful and relevant. Limited discussion and justification of recommendations. No critique of limitations.
Most recommendations are meaningful and relevant. Some discussion but weak justification of recommendations. The critique of limitations is rare.
Meaningful and relevant recommendations. Fair discussion and justification of recommendations with some critique of limitations.
Meaningful and relevant recommendations. Adequate discussion and justification of recommendations with adequate critique of limitations.
Meaningful and relevant recommendations. Extensive and insightful discussion and justification of recommendations with extensive critique of limitations.
Presentation, organisation and arguments (20)
Presentation and consistency of the report. Clarity of the structure and argumentation. Grammatical, spelling and citation errors.
Poor presentation, illogical structure, unclear images and tables. Incoherent and unstructured argumentation and lacking references. A lot of grammatical, spelling and citation errors.
Suboptimal presentation. Limited coherence in structure and argumentation. Minimal references. Frequent grammatical, spelling and citation errors.
Mediocre presentation. Coherent structure and argumentation, supported by references. Some grammatical, spelling and citation errors.
Clear presentation that is easy to follow. Coherent structure and logical argumentation, supported by a range of references. Minimal grammatical, spelling and citation errors.
Quality presentation that is easy to follow and pleasant to read, supported by a well thought-out structure and argumentation. Excellent references from a broad literature. No grammatical, spelling and citation errors.
Excellent presentation that is of publishable quality, supported by clear structure and argumentation. Sections are logically organised with smooth transition. Excellent references from a broad literature. No grammatical, spelling and citation errors.
Page 68 Ala. L. Rev. 551, * Page 175 of 999 DOCUMENTS
68 Ala. L. Rev. 551, *
175 of 999 DOCUMENTS
Copyright (c) 2016 University of Alabama
Alabama Law Review
Alabama Law Review
68 Ala. L. Rev. 551
LENGTH: 10419 words
ARTICLE: AMENDING AMATEURISM SAVING INTERCOLLEGIATE ATHLETICS THROUGH CONFERENCE–ATHLETE REVENUE SHARING
NAME: William W. Berry III *
* Associate Professor of Law and Jessie D. Puckett Lecturer, University of Mississippi. This paper developed out of a presentation to the Sports Law Section of the American Association of Law Schools at the annual AALS conference, organized by Matt Parlow. The author would like to thank the following for helpful comments on the presentation, early drafts, and the idea more generally: Matt Parlow, Matthew Mitten, Maureen Weston, Robert Illig, Roger Groves, Meg Penrose, Dionne Kohler, Alfred Yen, Gordon Hylton, Oliver Luck, and Kenneth Ferguson. The author would also like to thank Kathryn Fowler for her excellent research assistance.
HIGHLIGHT: College sports remains at a crossroads, with the NCAA’s defense of amateurism facing the dual threats of increased commercialization and antitrust lawsuits. By most accounts, this current status quo seems unsustainable. As such, this Article seeks to propose a middle ground–a compromise solution–that provides greater remuneration for athletes in revenue sports in a way that would largely preserve both the NCAA and the virtues of the current system.
Specifically, this Article argues that the conferences, not the institutions, should provide compensation for student-athletes in the form of revenue sharing. Further, this Article advocates the formation of conference-athlete unions that could negotiate compensation with the conferences and use the non-statutory labor exemption as a shield against antitrust lawsuits. As such, this proposal would amend the concept of amateurism to allow for payments from athletic conferences without altering the current relationship between student-athletes and their universities.
Part I of the Article outlines the first problem–the shifting definition of amateurism–and how it creates increasing pressure on the current system. Part II explains the second problem–the anticompetitive characteristics of the current system and their vulnerability to antitrust lawsuits. Then, in Part III, the Article advances its proposal, which addresses both problems and offers a novel solution to them. Finally, in Part IV, the Article justifies this proposal demonstrating how this compromise solution can improve the situation of student-athletes without sacrificing the status quo.
Progress is impossible without change, and those who cannot change their minds cannot change anything. — George Bernard Shaw n1
College athletics remains at a crossroads. For several years, an ongoing debate has raged in the media, on college campuses, and among fans concerning whether intercollegiate athletes should receive remuneration for participation in sports beyond their education-related compensation of tuition, room, and board. n2 Most of the conversation has focused on the [*553] larger principle itself–whether paying student-athletes compromises the identity of college athletics by violating the NCAA’s long-held principle of amateurism. n3 The conversation treats this decision as a sort of Rubicon–a point which if passed will end the current status quo and transform college athletics from an amateur into a professional endeavor. n4
The advocates of pay-for-play cite the commercial windfall generated by the athletic contests in the form of ticket revenue, advertising, television revenue, and other contributions to the university to suggest that the professional atmosphere has already arrived. n5 Further, everyone tangentially related to the athletic contests, including sponsors, vendors, networks, coaches, athletic department personnel, and the universities, reap financial gain with the exception of the athletes who actually provide the central source of entertainment. n6
On the other side of the debate, defenders of the status quo, including the NCAA, cite the principle of amateurism as the central reason for proscribing such payments. n7 Allowing universities to compensate student-athletes beyond paying for their education and related expenses would undermine the character of intercollegiate athletics, according to such advocates. n8 Rather than financial gain serving as a by-product of college [*554] sports, pay-for-play arrangements would transform the intercollegiate sports model into a minor league in which the virtues of college sports, particularly its connection to higher education, would disappear. n9
Also threatening the status quo is increasing evidence that, at least for some, the current model compromises the quality and scope of the education received by student-athletes, particularly in revenue sports. n10 The academic scandal at the University of North Carolina n11 provides the most obvious example of academic malfeasance, but there are many other past instances where the classroom education of student-athletes has amounted to no more than a sham. n12 Participating in what constitutes a full-time job in season makes academic success a challenge even with an army of tutors employed to help students. n13 And even then, student-athletes may have a limited range of classes and majors available to them because of the requirements of their sport. The recent clustering phenomenon–where [*555] large numbers of student-athletes “cluster” in the same major–underscores this point. n14
In recent years the NCAA and its member institutions have entertained increasing compensation at the margins, while holding firm in their commitment to the principle of amateurism. These changes have included allowing universities the ability to provide student-athletes with cost of living increases that cover basic expenses falling outside the provision of room and board, and relaxing restrictions on the provision of food to student-athletes. n15 Part of the outcome of such debates internally at the NCAA has been a growing gap in views between schools that have the resources to provide added benefits to student-athletes and ones that do not. n16
Further, student-athletes, union leaders, and lawyers have sought to use legal avenues to force the issue and gain both increased benefits and remuneration. In 2014, football players at Northwestern University filed a petition with the National Labor Relations Board to form a union. n17 The stated goal of this action was not to receive financial compensation, but other welfare benefits for the student-athletes, including enhanced medical care and insurance post-graduation for injuries suffered while playing college football. n18
Similarly, former UCLA basketball star Ed O’Bannon sued EA Sports and the NCAA for using his likeness in video games without compensating him. n19 This antitrust lawsuit expanded into a class action including both current and former student-athletes and challenging all uses of student-athlete [*556] likenesses, including in television broadcasts. n20 The plaintiffs won a victory of sorts at the district court level, with U.S. District Judge Claudia Wilken finding that the NCAA’s conduct violated § 1 of the Sherman Act, illegally restraining the ability of the student-athletes to participate in the market. n21 The court’s remedy, however, was a paltry $ 5,000 per student per year. n22 On appeal, the Ninth Circuit Court of Appeals upheld the lower court’s finding that the NCAA’s conduct violated antitrust law, but struck down the remedy adopted by the lower court. n23
Another pending class action lawsuit, Jenkins v. NCAA, goes further in challenging the current system. n24 Unlike the O’Bannon case, which focused solely on the use of student-athletes’ names and likenesses, Jenkins challenges the entire amateurism structure, arguing that restricting the ability of individual institutions to compensate their athletes constitutes an unlawful restriction on commerce. n25
Amidst this background, there remains the open question of whether a compromise solution exists. n26 The commercial pressures on the current system make the current model seem increasingly unsustainable. n27 The pending antitrust lawsuits, as explained below, threaten the future of intercollegiate athletics in a very real way. n28
Given that these cases can destroy the status quo, this Article seeks to propose a middle ground–a compromise solution–that provides greater remuneration for athletes in revenue sports in a way that would largely preserve both the NCAA and the virtues of the current system.
Specifically, this Article argues that the conferences, not the institutions, should provide compensation for student-athletes in the form of revenue sharing. Further, this Article advocates the formation of a conference–athlete employee relationship with student-athlete unions to enable the NCAA to use the non-statutory labor exemption as a shield [*557] against antitrust lawsuits. As such, this proposal would amend the concept of amateurism to allow for payments from athletic conferences without altering the current relationship between student-athletes and their universities.
Part I of the Article outlines the first problem–the shifting definition of amateurism–and explains how it creates increasing pressure on the current system. Part II describes the second problem–the anticompetitive characteristics of the current system and their vulnerability to antitrust lawsuits. Then, in Part III, the Article advances its proposal, which addresses both problems and offers a novel solution to them. Finally, in Part IV, the Article justifies this proposal by demonstrating how this compromise solution can improve the situation of student-athletes without sacrificing the status quo.
I. THE AMATEURISM PROBLEM
The concept of amateurism, at least as embraced by the NCAA and institutions of higher education, remains a fluid one. n29 In addition, as explained below, its current iteration has become increasingly less justifiable in the context of increased commercialism in intercollegiate athletics.
A. The Shifting Definition of Amateurism
In its purest form, amateurism contemplates that athletes perform simply “for the love of the game.” n30 The distinction between amateur and professional athletes began in England during the nineteenth century, where it reflected a difference in social class. n31 The upper class sportsmen, [*558] the gentlemen, participated as amateurs without pay, while the working classes played as professionals with compensation. n32
While ameliorating the class distinction, the modern Olympic games adopted a similar distinction related to compensation. The 1956 Olympic charter’s definition of an amateur is as follows: “An amateur is one who participates and always has participated in sport solely for pleasure and for the physical, mental or social benefits he derives therefrom, and to whom participation in sport is nothing more than recreation without material gain of any kind, direct or indirect.” n33 At its core, then, amateurism is simply participation in sport as “recreation without material gain of any kind, direct or indirect.” n34
At its founding, the NCAA adopted a similar, but even broader conception of amateurism. The 1906 NCAA Constitution identified the Principles of Amateur Sport to prohibit
[p]roselyzing [sic][t]he offering of inducements to players to enter Colleges or Universities because of their athletic abilities and of supporting or maintaining players while students on account of their athletic abilities, either by athletic organizations, individual alumni, or otherwise, directly or indirectly[; t]he singling out of prominent athletic students of preparatory schools and endeavoring to influence them to enter a particular College or University[; t]he playing of those ineligible as amateurs[; t]he playing of those who are not bona-fide students in good and regular standing[; and i]mproper and unsportsmanlike conduct of any sort whatsoever, either on the part of the contestants, the coaches, their assistants, or the student body. n35
This notion also extended to the initial eligibility requirements, which mandated that
[*559] [n]o student shall represent a College or University in any intercollegiate game or contest who has at any time received, either directly or indirectly, money, or any other consideration, to play on any team, or for his athletic services as a college trainer, athletic or gymnasium instructor, or who has competed for a money prize or portion of gate money in any contest, or who has competed for any prize against a professional. n36
In 1906, the NCAA took a position on paid summer baseball, deciding that playing in the minor leagues during the summer violated conceptions of amateurism, but left enforcement up to individual institutions. n37 This issue remained contentious, however, based largely on uneven enforcement, until the NCAA adopted a new definition of amateurism in 1916. That definition provided that “[a]n amateur athlete is one who participates in competitive physical sports only for the pleasure and the physical, mental, moral and social benefits directly derived therefrom.” n38
The NCAA, however, did not enforce amateurism rules nationally until 1954, when it formed the Committee on Infractions. n39 Over time, the definition of amateurism broadened to include athletics grants-in-aid and allow recruitment of high school athletes. n40 Another major change occurred in 1974, when the NCAA modified its rules to allow athletes to compete in one sport as a professional, while maintaining their amateur status in another. n41
The modern definition of amateurism employed by the NCAA focuses on education as its conceptual cornerstone. Section 2.9 of the NCAA Manual provides:
Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises. n42
The NCAA website further explains that
[*560] [a]mateur competition is a bedrock principle of college athletics and the NCAA. Maintaining amateurism is crucial to preserving an academic environment in which acquiring a quality education is the first priority. In the collegiate model of sports, the young men and women competing on the field or court are students first, athletes second. n43
Generally, the NCAA’s amateurism rules prohibit contracts with professional teams, receiving a salary for participating in athletics, receiving prize money above actual and necessary expenses, play with professionals, tryouts, practice or competition with a professional team, benefits from an agent or prospective agent, agreements to be represented by an agent, and any delay of initial full-time collegiate enrollment to participate in organized sports competition. n44
The bright-line rule that the NCAA has attempted to draw, then, rests on the concept of education. n45 Funds provided in support of education, including scholarships, room, board, and most recently, cost of attendance, all fall within the concept of amateurism because they are expenditures related to education. n46
The complex nature of the NCAA rules, however, demonstrates the difficulty in both applying and policing this distinction. n47 The increasing challenge of enforcing the rules has led to a proliferation of compliance staff members, as well as controversy in enforcement. n48
B. The Conflict Between Educational and Commercial Interests
As the NCAA has settled in recent years on a definition of amateurism linked to education, the increasing commercialism of intercollegiate [*561] athletics has raised questions about the fairness of this approach. Where the environment is one where the athletic contests appeared supplementary to the educational experience, the concept of amateurism seems justified. For many of the non-revenue sports, and even in the Ivy League, which has no athletic scholarships, the concept of participation for the love of the game and for personal enrichment seems to be an appropriate characterization. n49
The reality, though, in the revenue sports of men’s football and men’s basketball, is that the entire enterprise has the feel of a professional economic machine. n50 One has to look no further to the level of seriousness that many fans accord to the recruitment of high school athletes as evidence that these sports go far beyond the simple joy of participation. n51
The economics reflect this reality. In most states, the highest paid public employee is a football coach or a basketball coach, with the salaries of many assistant coaches exceeding the salaries of college presidents. n52 The budget of the athletic department is by far the largest departmental budget at many universities. n53
Indeed, at many institutions, the athletic department remains deeply interrelated to the fortunes of the university. Increasingly, it operates (thanks to broad television coverage) as a front porch for the university, attracting students, alumni donors, and the general public into the university community. n54 The benefits for the university are obvious, even [*562] apart from revenue raised by the athletic department. n55 The continued success of athletic programs remains a high priority, particularly for large public institutions. n56
Further, the creation of conference-based television stations has added to the revenue for higher education institutions. n57 The SEC Network, in particular, has been quite successful, generating millions of dollars in revenue and providing widespread national exposure for its universities. n58 Indeed, almost all of the SEC football and basketball games are now televised nationally. n59
As the economic side of intercollegiate athletics continues to grow, the tension between the commercial enterprise of athletics and the goal of education embedded in the concept of amateurism continues to increase. n60 At one level, the idea that institutions and their employees, coaches, advertisers, television networks, conferences, refreshment vendors, and other involved parties all benefit financially from revenue sporting events offends notions of fairness when compared with the absence of remuneration provided to student-athletes. n61 The appearance that increasingly persists is that the universities and the aforementioned third parties benefit off of the student-athletes in a way that is exploitative and unfair. n62
The wealth gap between the coaches and the many student-athletes that come from poor backgrounds is particularly striking. n63 Similarly, university [*563] sales of athletes’ jerseys seem unfair when not shared with the athletes. n64 As discussed below, the use of athletes’ physical characteristics by the NCAA to create video game avatars, drawn from game film of the athletes, again supports the perception that the student-athletes do not receive fair treatment under NCAA rules. n65
Even more problematic, though, is the evidence that the educational experience of student-athletes may not be meaningful, or at the very least becomes compromised. n66 As the beacon of the concept of amateurism, the idea that student-athletes receive academic benefits from their respective institutions lies at the heart of the justification of denying pay-for-play. n67
Certainly, where academic fraud occurs, this standard appears to be a sham. n68 But even where universities follow NCAA rules, there is an open question concerning the degree to which the athletic requirements placed on student-athletes limit or compromise their academic opportunities. n69
The widespread unpreparedness for college, as evidenced by the test scores and high school grade-point averages of many athletes, particularly in the revenue sports, highlights this issue. n70 Even with tutoring, the [*564] educational prospects of such students can diminish. n71 The temporal requirements on the student-athletes make the idea that education comes first somewhat dubious in many situations. n72 Where athletics require a commitment of forty to sixty hours a week, engaging in academic matters in a robust way seems like a difficult proposition. n73
Increasingly, the pressure on students and universities to cut corners can compromise the educational experience of students. n74 Without a doubt, participation in a revenue sport can limit the academic choices of student-athletes. n75 The question is whether these demands eviscerate their choices entirely. The recent phenomenon of clustering majors at some universities suggests such compromising might occur at many schools. n76 To be sure, many student-athletes want more time away from their athletic obligations. n77
The NCAA and its member institutions are not unaware of these issues. Nonetheless, the NCAA has demonstrated its reluctance to double down on its emphasis on education, largely allowing athletic departments and coaches to dictate the schedules of student-athletes. n78
[*565] While the NCAA has made clear that most of its athletes “go pro in something [else],” n79 it has done little to ensure that universities provide the academic rigor for student-athletes, particularly in revenue sports, that the institutions often require of their other students. n80 The proxy that it uses–graduation rates–ignores the quality of education student-athletes receive. n81 Adding more robust limitations on the time spent participating in sports might make the achievement of a meaningful education a more realistic goal. n82 Instead, the appearance remains that an eligibility-at-all-costs approach prevails at many institutions. n83
C. The Northwestern Union Case
In 2014, football players at Northwestern University attempted to unionize by petitioning the National Labor Relations Board (NLRB) to recognize their election. n84 In a decision that the NLRB later vacated, Regional Director Peter Sung Ohr held that the football players are university employees for purposes of the NLRB. n85 The significance of this decision was not in its outcome–there will be no union on the Northwestern campus anytime soon–but rather arose from the language of the decision and the compelling case it made for understanding the relationship of athletes to the university in terms of employment. n86
The Director explained that the central reason the athletes attended Northwestern was to play football. n87 Education, if a reason at all, was secondary. n88 Further, he cited the economic benefit to the institution that accrued revenue of $ 235 million over a nine-year period. n89 The athletes provided the services that resulted in this revenue, working between forty [*566] and sixty hours per week. n90 In addition, the athletes received remuneration in the value of $ 76,000 per year, counting the cost of education, room, board, and books. n91 The picture he painted was clear–the intercollegiate athletics enterprise is a financial one in which universities accrue revenue from the performance of their athlete-employees.
While the NCAA and its member institutions might decry this characterization, the increasing perception makes this understanding a growing problem. And the continued economic growth of intercollegiate athletics will only serve to increase the pressure to share the wealth with the athletes.
II. THE ANTITRUST PROBLEM
In addition to an amateurism problem, the NCAA has an antitrust problem. No fewer than four major lawsuits are pending against the NCAA, challenging various aspects of its rules and structure under antitrust law. n92 In Hartman v. NCAA, the plaintiffs, a class comprised of women’s basketball players, are challenging the NCAA limits on the amount of money student-athletes can receive as part of their grants-in-aid, arguing that this restriction violates federal antitrust law. n93 In Gregory-McGhee v. NCAA, football players are challenging the limits to the grants-in-aid for intercollegiate athletes, arguing that the NCAA and the Big 5 conferences have colluded in violation of antitrust law to depress the value of the grants-in-aid such that it fails to cover the cost of attendance of the student-athletes. n94 In Alston v. NCAA, the plaintiffs raise a similar claim, arguing that NCAA limits on the amount of grants-in-aid violate federal antitrust laws. n95 Finally, in Jenkins v. NCAA, the plaintiffs’ antitrust challenge includes all football and basketball players, and more broadly challenges the restrictions the NCAA and its member institutions place upon student-athletes. n96
At the core of these cases is the same central claim–that the NCAA is a cartel that restricts the market for intercollegiate athletes to receive paid [*567] services. n97 All available employer institutions n98 in the market for college athletes have agreed to abide by a central set of rules that require intercollegiate athletes to maintain amateur status. n99
A. NCAA Antitrust Challenges
The NCAA is no stranger to antitrust challenges. n100 Indeed, the Board of Regents case from the 1980s has deprived it of its largest potential source of revenue–money from television rights for college football games. n101
In the early 1980s, the NCAA regulated universities through its College Football Association (CFA). n102 The CFA limited the number of times a university could appear on television and limited the number of games televised each weekend. n103 Although unthinkable in the current era of wall-to-wall coverage in which there is a game almost every night of the week, n104 the CFA system capped appearances of member institutions and prohibited them from entering into their own agreements with networks. n105
The University of Oklahoma and the University of Georgia, football powerhouses at the time, petitioned the NCAA for the right to enter into their own agreements with television networks. n106 The NCAA refused, citing the fear that televising more games could threaten attendance at college football games. n107
Georgia and Oklahoma challenged the NCAA’s restrictions, arguing that they violated the Sherman Act, the federal antitrust law that prohibits [*568] unreasonable restraints of trade. n108 Specifically, the universities claimed that the NCAA restrictions constituted an anticompetitive restraint of trade. n109
Applying the Rule of Reason test, the Supreme Court found that the restraint was indeed anticompetitive. n110 The NCAA offered a procompetitive justification for the restriction–the restriction was necessary to preserve its product in the market. n111 In other words, it was necessary to restrict the ability of member institutions to appear on television in order to protect the live attendance at the football games. n112
The Supreme Court disagreed. n113 It held that this justification was inadequate because it was “not based on a desire to maintain the integrity of college football as a distinct and attractive product, but rather on a fear that the product will not prove sufficiently attractive to draw live attendance when faced with competition from televised games.” n114 The proffered reason, then, was simply an argument against competition in the marketplace, not a means to promote economic competition. n115
The NCAA also lost an antitrust challenge to its attempt to restrict the salaries of restricted-earnings basketball coaches. n116 In Law v. NCAA, the Tenth Circuit held that such restrictions were anticompetitive in violation of the Sherman Act. n117 The court rejected the NCAA’s procompetitive justifications, including the reduction of cost. n118
Challenges to the NCAA’s eligibility rules, however, have not until recently been as successful. In Smith v. NCAA, the Third Circuit denied an antitrust challenge to the NCAA bylaw that restricted participation in NCAA sports as a graduate student at an institution other than one’s undergraduate institution. n119 The court held that the rule restricted athletic competition, but not economic competition. n120 The amateur nature of [*569] intercollegiate athletics meant, according to the court, that antitrust law did not apply to NCAA eligibility rules. n121
Other cases challenging NCAA rules, including its no-draft rule and its no-agent rule, likewise did not prevail. n122 At the heart of these cases was the amateurism defense advanced by the NCAA–that antitrust law did not apply to NCAA eligibility rules because the relationship between student-athletes and their member institutions was not an economic one. n123 As discussed below, this understanding has started to shift, arguably as a result of commercial growth in college sports.
B. O’Bannon v. NCAA
In 2008, former UCLA basketball star Ed O’Bannon filed suit against EA Sports and the NCAA for misappropriating his likeness and using it in a video game without his consent and without compensating him. n124 The class of plaintiffs broadened to include current and former intercollegiate athletes. n125 EA Sports settled with the plaintiffs pictured on the video games, leaving a class action lawsuit of current athletes against the NCAA, in which the athletes sought an injunction against the enforcement of the NCAA’s amateurism rules. n126 Specifically, the athletes sought the ability to receive remuneration for the use of their names, images, and likenesses. n127
At trial, the plaintiffs argued that the NCAA’s amateurism rules violated the Sherman Act as anticompetitive restraints of trade in two distinct markets: (1) the college education market and (2) the group licensing market. n128 The district court held that the NCAA rules constituted price-fixing in the college education market in that they limited the ability of athletes to bargain in the market for benefits, including the full cost of attendance of their grants-in-aid. n129 As to the group licensing market, the [*570] court held that the NCAA’s restrictions were not anticompetitive because the plaintiffs failed to show that a group market existed for their names and likenesses. n130
Under the Rule of Reason, the next question before the court was whether the NCAA could offer procompetitive justifications for the anticompetitive restrictions in the college education market. n131 The NCAA offered four justifications–(1) the preservation of amateurism in college sports; (2) promoting competitive balance among FBS football and Division I basketball teams; (3) the integration of academics and athletics; and (4) the ability to generate greater output in the relevant markets. n132
The district court held that the first and third justifications had some procompetitive impact. n133 As to the preservation of amateurism, the NCAA argued, in a similar vein to its losing argument in Board of Regents, that allowing intercollegiate athletes to receive remuneration unrelated to education would threaten the “product” of college football. n134 In other words, allowing athletes to receive remuneration would compromise intercollegiate athletics economically. n135
The district court found that this idea had some value–the economic product of college football and basketball might suffer economically if the athletes’ amateur status changed. n136 Interestingly, the court also recognized that the integration of academics and athletics provided an economic value that might suffer with the professionalization of college sports. n137
Neither notion, however, was dispositive under the Rule of Reason; the court had to determine whether a less intrusive means was available than the amateurism restrictions imposed by the NCAA. n138 Seizing on a comment by expert witness Neil Pilson, the court held that providing a $ 5,000 per year stipend would provide an appropriate remedy to the anticompetitive conduct. n139 Furthering the ideals of amateurism, such funds would stay in a trust until after the intercollegiate athlete left the university. n140
The Ninth Circuit Court of Appeals, however, partially reversed the district court’s opinion. n141 While the court agreed with the district court’s [*571] general assessment with reference to the anticompetitive conduct of the NCAA, it found that the antitrust laws did not require the $ 5,000 per year stipend imposed by the district court. n142 The court explained that the NCAA and its rules could not escape antitrust scrutiny, but that the procompetitive justification of amateurism provided a reasonable basis for the NCAA’s prohibitions against provision of financial compensation to intercollegiate athletes. n143
Interestingly, both the lower court and the court of appeals were clear that the NCAA’s rules are anti-competitive. n144 The only questions were whether there existed a legitimate justification for such rules, and if not, what the appropriate remedy ought to be. n145
To be sure, the idea that the enterprise of intercollegiate athletics would suffer as an economic product in the marketplace if it allowed student-athletes to share in some of the profits appears tenuous at best. In many ways, it echoes the NCAA’s argument in Board of Regents that televising games would hurt attendance. n146
Indeed, in many ways, the future of intercollegiate athletics hinges on this argument. With the current structure clearly creating an anticompetitive restraint in the market, the only procompetitive justification appears to be the idea that paying intercollegiate athletes would destroy the economic market for college sports. In other words, the NCAA is arguing that fans would not attend games or watch them on television if schools paid their athletes any money–such that amateurism is essential to preserve the economic product of college sports.
Both the district court and the court of appeals seemed to suggest compromise solutions to the amateurism problem–one implicit and one explicit. Judge Wilken’s solution of providing intercollegiate athletes a stipend of $ 5,000 per year seems like a way to provide some money to intercollegiate athletes without destroying the status quo. n147
For Judge Bybee, that step launches the entire enterprise down a slippery slope toward professionalization. n148 While the slippery slope fallacy certainly applies here–one small incremental step does not amount to a sprint where one never looks back–the possibility of a significant [*572] paradigm shift looms larger and larger as financial revenues continue to explode.
Instead, Bybee’s implicit compromise solution is to clothe remuneration as an extension of education. n149 Covering additional expenses related to education, or even offering more education, does not, for Bybee, cross the Rubicon from amateurism to professionalism. n150
C. Pending Litigation
A number of lawsuits, however, continue to force the issue. As O’Bannon made clear, the rules and regulations of the NCAA with respect to intercollegiate athletes remain anticompetitive restraints on trade in the market for the services of those athletes. n151 It is also clear, and increasingly the case, that the market is one that involves large commercial enterprise, even with respect to the athletes. n152 What less than a decade ago was a one-year scholarship has become a multi-year scholarship with the full cost of attendance covered. n153 There is, without a doubt, an economic character to the relationship between athletes and their universities, and by extension, the NCAA. n154
Equally troubling for the NCAA and its member institutions is the weak justification that has protected its amateurism conception to date–the idea that the amateur nature of college sports is inextricably tied to its financial success. n155 It might be just as easy to argue, though, that it is not the concept of amateurism, but the nature of the institutions themselves and their relationships (and rivalries) with each other that make the economic product of intercollegiate sports so lucrative. n156
Whether the college basketball player receives money or not will likely not diminish interest in college sports, particularly in the context of in-state [*573] rivalries. The idea that fans will not attend or watch the Auburn-Alabama football game if the universities pay the athletes seems unlikely and farfetched.
At the very least, the tenuous nature of the antitrust defense exposed by O’Bannon has encouraged more litigation against the NCAA. n157 The cost of defending the lawsuits alone makes considering a compromise solution worth the energy of the NCAA and its member institutions. n158
Likewise, the consequence of losing one of these lawsuits also counsels in favor of pursuing a compromise solution. Such suits, in many ways, are bet-the-company lawsuits, such that the enterprise of college athletics, as it currently exists, might well be lost as a consequence. If the court finds that the current rules violate antitrust law, one remedy could be the development of an open market for the services of athletes. In such a context, the need for any form of education for athletes disappears. n159
Having lost the rights to revenue from college football as a result of its unwillingness to compromise in the Board of Regents case, it is, on some level, surprising that the NCAA has drawn such a fierce line in the sand in this context to preserve its brand of amateurism–which involves a significant amount of pay for student-athletes–at all costs. n160 Its failure to double down on the concept of education–the cornerstone of this brand of amateurism–further suggests that its motives may be largely economic.
To that end, the next Part proposes a compromise solution–one that provides some compensation for intercollegiate athletes, addresses the amateurism problem without sacrificing education, and provides protection against antitrust lawsuits.
III. THE PROPOSAL: CONFERENCE-ATHLETE REVENUE SHARING
Given the current landscape of uncertainty, both in terms of the future of amateurism and the pending antitrust lawsuits, this Article proposes a compromise solution–conference-athlete revenue sharing. The core idea would be to allow student-athletes, particularly those in revenue-generating sports, to share in the revenues. This remuneration, though, would occur at the conference level.
[*574] A. The Revenue-Sharing Model
Most major conferences engage in revenue-sharing arrangements in which they share in the profits generated by their members, including television contracts, the college football playoff and bowl games, conference championship games and tournaments, and appearances in the NCAA basketball tournament. Typically, conferences share this revenue equally, irrespective of which institution’s team actually qualified for the postseason event.
The proposal here is to give the student-athletes at the institutions a “share” of the revenues. In the Southeastern Conference, for instance, the fourteen universities divide the revenue into fourteen equal shares. n161 In 2014, this amount was around $ 455 million. n162 Under the proposed model, the universities would add a fifteenth share to compensate the student-athletes. The conference would thus share revenue among fifteen entities, not fourteen.
For the student-athlete share, the conferences would then allocate the amount by sport–men’s football, men’s basketball, women’s basketball, etc.–depending on the amount of revenue generated by competitions of the particular sport. So, if the revenue came from bowl games, intercollegiate football athletes would benefit. If the revenue came from the NCAA women’s basketball tournament, those athletes would receive a share of that money. Under this model, it would not be difficult for the conference TV network to allocate revenues based upon the contests it chose to televise.
Among student-athletes in a particular sport, each student-athlete would receive an equal share. For head count sports like football and basketball, this would not be difficult. In the SEC, for instance, if each school’s basketball team has thirteen scholarship athletes and there are fourteen universities, then the basketball part of the student-athlete share of the revenue would be divided into 182 equal parts. n163 In non-head count sports, the conference would have to determine a number of participants of each sport and then divide evenly by university.
Under the current fiscal model, students in revenue sports would receive anywhere from $ 5,000-$ 25,000 per year, with students in non-revenue sports receiving much less, and maybe nothing in some cases. Again, the per-sport allocation of revenue would directly depend on the amount of money that sport generated.
[*575] B. The Conference-Athlete Employment Relationship
For this model to work, however, the conferences must establish contractual relationships with the student-athletes. These contracts would be independent of the scholarship contracts students enter into with their universities.
The contracts would be employment contracts for the term of the student-athletes’ scholarships. The contracts, for the purpose of this proposal, would simply provide for sharing remuneration generated from athletic contests and television rights for athletic competitions accumulated by the conferences. The relationship could also provide for added benefits for student-athletes, including health care insurance if the conference so desired.
C. The Development of Labor Unions
Rather than have individualized negotiations between each student-athlete and the conference, the student-athletes would form a labor union to negotiate with the conference. The collective-bargaining arrangement would involve only the conference and the athletes, much like the arrangement in professional sports such as football, baseball, and basketball.
Intercollegiate athletes would then have a voice as to their arrangement with the conference, including the provision of additional benefits, including health care. In hardship situations, the conference, not the institutions, could likewise fill in gaps and provide for student-athletes’ basic needs in a way that would not undermine NCAA prohibitions against such activities.
Rather than the institution or boosters, the conferences would provide a neutral third party that could administrate needed benefits to student-athletes and have an arms-length negotiation with them. In addition, the institutions would not have to compete directly with each other with respect to athlete payments. The competition would be inter-conference, not intra-conference.
One question would be whether all of the athletes would be in a single union with the conference, or whether each sport would need its own union. Either way might be palatable. On a macro level, intercollegiate athletes are similarly situated, with similar interests. One might argue, though, that each sport has its own economic interests–so the football athletes may need a different union than other sports. In theory some groups might have more bargaining power vis-à-vis the conference. This could be a reason to separate the unions or to keep them together.
[*576] As discussed below, the union-management relationship would serve several purposes. First, it would insulate the NCAA, the conferences, and the universities from antitrust lawsuits, as explained below. Second, it could provide an arbitration-based dispute resolution system, discouraging the filing of lawsuits against the NCAA.
The intercollegiate athletes would also have a much more significant voice, both in terms of economics, but also in terms of conditions on campus. The conference could regulate such issues as education-athletic balance, better police campus environments, and would have some insulation from the pressures of winning that drive campus decision-making.
As explained in the next Part, this model–while not the ideal of either the pay-for-play faction or the NCAA–would provide a reasonable compromise that could provide a win-win scenario for all involved.
IV. WHY CONFERENCE-ATHLETE REVENUE SHARING WORKS
The conference revenue-sharing model attempts to balance the concerns of student welfare with the concerns of amateurism and education. In essence, it follows the prior path of amending the definition of amateurism to address the changing realities of intercollegiate athletics.
In some ways, this approach is analogous to the Olympic approach to amateurism, in which the athletes remain amateurs as long as they do not receive compensation for participation. n164 Other forms of remuneration from third parties, including endorsements and sponsorships, do not compromise their amateur status for Olympic purposes. n165
In the conference-athlete revenue sharing model, the conference becomes the sponsor. A pure Olympic model in college athletics, while advocated by some, would be the worst of all worlds for many universities because it would transfer economic control over college sports programs to third party boosters. Under the conference-athlete revenue sharing model, though, such worries dissipate because centralized institutions provide the economic support.
A. Conference Revenue Sharing Meets the NCAA’s Goals
At the heart of the traditionalist push to restrain the move away from amateurism and compensation for athletes lie two central ideas: (1) avoiding open-market professional status for the athletes and (2) a desire to [*577] keep intercollegiate athletes from sharing in the largesse produced by the revenue sports.
Putting aside the Pollyannaish notion that intercollegiate athletes in revenue sports are purely amateurs who play purely for the love of the game, there still remains a sense in which the university experience possesses unique characteristics that offer value to the athlete.
Indeed, the concept of education lies at the heart of the NCAA’s stated mission. The current model, though, creates inherent pressures that place education to the side of the equation. Allowing intercollegiate athletes some remuneration would not compromise education, particularly if conferences made the distributions.
Sharing some of the revenue would slow the arms race that has proliferated in the Big 5 conferences. The number of minor infractions cases would likely dissipate with the provision of small amounts of money to athletes by the conferences. The NCAA would have more ability to focus on its stated mission–to promote education. To be sure, the idea that providing a few thousand dollars to intercollegiate athletes would undermine the character of college athletics seems shortsighted.
1. Conference Revenue Sharing Improves Athlete Welfare
Under the current status quo, many student-athletes struggle, particularly those from poor socio-economic backgrounds. Even with the increase in grants-in-aid to cover cost-of-attendance, some student-athletes face real financial struggles, and have little margin for error. The parents of those athletes often cannot afford to travel to visit the athletes on campus, much less attend the games.
By providing the athletes with a share of conference profits, the athletes certainly will not become wealthy. But for many students, a few thousand dollars could make a major difference. Removing financial stress from revenue sport athletes also increases the possibility that these athletes will be able to better balance the demands of academics and athletics.
At the same time, this model will not convert athletes into professionals. In some sense, the imbalance between athletics and academics at some institutions places those kinds of burdens on the athletes without any compensation. This model does not abdicate their role as students; rather, it provides some compensation to make that experience more robust.
2. Conference Revenue Sharing Saves the Status Quo
Perhaps most important, at least from the perspective of the NCAA, is that the conference-athlete revenue sharing model saves the status quo. It [*578] does so in two senses. First, it largely retains the amateur characteristics of the athletes, particularly with respect to their relationship to the university. Second, as considered in the next part, it shields the NCAA and its member institutions from antitrust lawsuits.
Indeed, the relationship between the institution and the student-athlete remains the same under this model. While it is true that the institutions of higher education comprise the conference, the conference itself (much like the NCAA) is its own separate entity. As such, the university-student relationship remains just that, with students only receiving from the university economic benefits related to the provision of education.
The separate relationship between the athlete and the conference also enhances the amateur character of the relationship to the university because it differentiates the amateur nature of the student-university relationship from the employee-conference relationship.
In this model, the NCAA can continue to profit off of the NCAA basketball tournament and exercise control over the role of the student-athletes inside and outside the competitions. In addition, the NCAA already works with the conferences extensively–which would enable better connection to student interests.
3. Conference Revenue Sharing Can Reduce Excess
The conference-revenue sharing model can take pressure off of the current system as well. By slowing down the economic growth of athletic programs, the conference-revenue sharing model will stunt the arms race between universities and encourage fiscal responsibility within athletic departments. Giving the athletes a share of the revenue might cause athletic departments to slow facility upgrades and coach salary increases.
The idea that athletic departments are struggling with most not making a profit results from two different sources. First is the attempt of schools with lesser resources to compete with schools with greater resources. Strengthening a conference-based model will slow some of the overreaching for some institutions. Second, schools are simply overspending to compete with each other. This practice has arguably gone too far, with many universities using student fees to support athletics. n166 With a share of the money going to the athletes, the impetus to spend at all costs might not disappear, but it might slow down with the uncertainty of another expense.
[*579] B. Conference Revenue Sharing Provides an Antitrust Defense
In addition to preserving the amateurism model, albeit in an amended form, the conference-athlete revenue sharing provides a shield against antitrust claims. n167 This shield has two different manifestations. First, the difference between conferences, as discussed below, lessens the anticompetitive restraint in the college market. Second, the non-statutory labor exemption serves as a defense to anticompetitive behavior by the NCAA and its member institutions.
1. Inter-Conference Competition
Currently, there is no real economic competition between institutions for athletes. The coaches can offer many things, but extra financial benefits are not one of them. As a result, the NCAA amateurism rules create an anticompetitive restraint in the market for college athletes.
Under the conference-athlete revenue sharing model, each conference has a different amount of revenue, and this number shifts from year to year. Athletes would be able to choose institutions based in part upon their conference, and the amount of remuneration they would be likely to receive. If labor unions developed, the athletes could likewise compare the respective collective bargaining agreements when choosing an institution.
The result would then be economic competition between conferences. This would not eliminate the anticompetitive restraint created by institutions, but would shift the market to the conferences. This move could either minimize the level of the anticompetitive restraint or create an alternative procompetitive justification that could serve as a defense against antitrust claims. This would, at the very least, make the NCAA’s antitrust defenses extend beyond its tenuous amateurism defense.
2. The Non-Statutory Labor Exemption
The better defense, however, would be the non-statutory labor exemption to antitrust law. Developed in the sports context in a series of NFL cases, the exemption generally precludes the application of antitrust law to organized labor relations. n168
While the goal of antitrust law is to promote competition, the goal of labor law is the opposite–to restrict competition and create one bargained [*580] agreement between similarly situated workers and management. As such, the process of creating restraints where such restraints are part of a collective bargaining agreement receives an exemption from antitrust law. Courts have created this exemption to encourage and enable individuals to form labor unions.
In the context of conference-athlete revenue sharing, the decision of the conferences to place limits on athlete compensation would avoid antitrust scrutiny because it would be part of a collectively bargained agreement. The value of protecting the collectively bargained would outweigh the antitrust claims by individual athletes or high school athletes. n169
In other words, the conference-athlete revenue-sharing agreement would block all antitrust claims against the NCAA and intercollegiate athletics. By paying the athletes through conferences, the athletes would not be able to challenge the rules under antitrust law. Labor law, instead, would provide the remedy for athletes that wanted to increase their share of profits. Conferences and athletes would collectively bargain this revenue sharing.
C. Other Benefits of Conference-Athlete Revenue Sharing
One concern of paying athletes would be violating Title IX by not mandating gender equity in payments. The conferences, however, would not be subject to Title IX. The Court has held as much with respect to the NCAA. n170 In addition, the payments under the conference-athlete revenue sharing model would be gender-neutral. Whichever sport brought in the revenue, those athletes would receive the remuneration. Women’s basketball players, for instance, might receive more money than men’s baseball players. Revenue would reflect the preferences of the market, not gender preferences.
Another advantage of this approach would be its consistency with the broader trend toward developing conference identities. With the advent of conference television networks, each conference, particularly the Big 5 conferences, has developed a richer culture around its institutions and athletic competitions. For traditionalists, strengthening the relationship between the athletes and the conference, and the conference providing financial support to the athletes, may be less objectionable.
The current status quo in college athletics seems unsustainable. From one direction, the increased commercialism of college football and basketball continues to undermine the perception that the athletes are amateurs, or that they should be amateurs. The relationship between amateurism and education also has, in some cases, become increasingly weak.
From the other direction, antitrust lawsuits threaten to create an open market for athlete compensation. The procompetitive defense at the heart of the lawsuits–that the amateur nature of college sports provides a unique product that depends on the amateurism to preserve its own financial market–appears fragile and potentially unsustainable.
This Article, then, has sought to offer a compromise solution that largely preserves the status quo while defending against amateurism and antitrust attacks. Specifically, the Article has proposed amending amateurism to allow for athletes to become employees of the conferences. This arrangement would provide for some remuneration and sharing of the wealth with athletes without altering their relationship with the universities. Also, to the extent that athletes could form unions and collective bargaining agreements with conferences, such arrangements would provide a shield against antitrust lawsuits through the non-statutory labor exemption. By bending its definition of amateurism slightly, the NCAA could (1) ensure its survival, (2) preserve the status quo, and (3) save millions in litigation costs.
Clearly, solving this issue outside of the courts is preferable for all parties involved. And it appears that the resources are present to accomplish a compromise solution. Perhaps this proposal will generate increased conversation about how to address the amateurism and antitrust problems before outside forces (and the courts) destroy the status quo.
For related research and practice materials, see the following legal topics:
Antitrust & Trade LawIndustry RegulationProfessional Associations & Higher EducationColleges & UniversitiesEducation LawAdministration & OperationStudent Financial AidAthletic ScholarshipsEducation LawAthleticsRecruitment
n1 GEORGE BERNARD SHAW, EVERYBODY’S POLITICAL WHAT’S WHAT 330 (1945).
n2 See, e.g., Joe Nocera, Let’s Start Paying College Athletes, N.Y. TIMES MAG. (Dec. 30, 2011), http://www.nytimes.com/2012/01/01/magazine/lets-start-paying-college-athletes.html?_r=0; Michael Wilbon, College Athletes Deserve to be Paid, ESPN.COM (Jul. 18, 2011), http://espn.go.com/college-sports/story/_/id/6778847/college-athletes-deserve-paid; Associated Press, NCAA Prez: Stipend Not ‘Pay For Play,’ ESPN.COM (Nov. 3, 2011), http://espn.go.com/college-sports/story/_/id/7187028/ncaa-stipend-not-lean-pay-play-president-mark-emmert-says.
n3 Marc Edelman, The Future of Amateurism After Antitrust Scrutiny: Why a Win for the Plaintiffs in the NCAA Student-Athlete Name & Likeness Licensing Litigation Will Not Lead to the Demise of College Sports, 92 OR. L. REV. 1019 (2014); Virginia A. Fitt, The NCAA’s Lost Cause and the Legal Ease of Redefining Amateurism, 59 DUKE L.J. 555 (2009); Amy Christian McCormick & Robert A. McCormick, The Emperor’s New Clothes: Lifting the NCAA’s Veil of Amateurism, 45 SAN DIEGO L. REV. 495 (2008); Note, Alex Moyer, Throwing Out the Playbook: Replacing the NCAA’s Anticompetitive Amateurism Regime with the Olympic Model, 83 GEO. WASH. L. REV. 761 (2015).
n4 With apologies to Caesar, many claim that paying athletes will create a fundamental shift that will change college sports forever. See O’Bannon v. NCAA, 802 F.3d 1049, 1078-79 (9th Cir. 2015) (“The difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is . . . a quantum leap. Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point . . . .”) (footnote omitted); Richard Amaral, College Football: No Turning Back, EXAMINER.COM, Oct. 31, 2011 (making a similar argument).
n5 See, e.g., Taylor Branch, The Shame of College Sports, THE ATLANTIC (Oct. 2011), http://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/; Nocera, supra note 2.
n6 Linda Chavez, How Colleges Exploit Athletes, N.Y. POST (Mar. 28, 2014), http://nypost.com/2014/03/28/how-colleges-exploit-athletes/; Editorial, Pay to Play (and Study) in College Sports, CHICAGO TRIBUNE (Feb. 2, 2015), http://www.chicagotribune.com/news/opinion/editorials/ct-ncaa-football-pay-edit-0202-20150130-story.html.
n7 See, e.g., Horace Mitchell, Students Are Not Professional Athletes, U.S. NEWS (Jan. 6, 2014), http://www.usnews.com/opinion/articles/2014/01/06/ncaa-athletes-should-not-be-paid; Ekow N. Yankah, Why N.C.A.A. Athletes Shouldn’t Be Paid, THE NEW YORKER (Oct. 14, 2015), http://www.newyorker.com/news/sporting-scene/why-ncaa-athletes-shouldnt-be-paid.
n8 See, e.g., Dan Duggan, Charles Barkley: Paying College Athletes is ‘Ridiculous,’ NJ.COM (Mar. 10, 2015), http://www.nj.com/rutgersfootball/index.ssf/2015/03/charles_barkley_paying_college_athletes_is_ridicul.html; Victor Lipman, Why Considering College Athletes Pro Athletes is a Really Bad Idea, FORBES (Apr. 1, 2014), http://www.forbes.com/sites/victorlipman/2014/04/01/why-considering-college-athletes-pro-athletes-is-a-really-bad-idea/#7c361a664b31.
n9 Scoop Jackson, The Myth of Parity, ESPN (Sept. 12, 2013), http://espn.go.com/colleges-ports/story/_/id/9666004/pay-play-answer-college-athletics (suggesting that college football without the university label would just be the NFL).
n10 Sara Ganim, CNN Analysis: Some College Athletes Play Like Adults, Read Like 5th-Graders, CNN (Jan. 8, 2014), http://www.cnn.com/2014/01/07/us/ncaa-athletes-reading-scores/ (finding that 10% of revenue sport athletes read below the fourth-grade level).
n11 Dan Kane, UNC Records Show Deep Dependence on Fake Classes, NEWS & OBSERVER (Nov. 7, 2015), http://www.newsobserver.com/news/local/education/unc-scandal/article43622670.html.
n12 For instance, the basketball assistant coach at the University of Georgia taught a class where the final exam consisted of 20 questions, including “[h]ow many points is a 3-pointer worth?” Coach Gave Every Student an A, ESPN (Mar. 4, 2004), http://espn.go.com/ncb/news/story?id=1750279. Members of the Syracuse academic services team used student athletes’ usernames and passwords to turn in tutored papers for them. Jon Solomon, What Syracuse’s NCAA Case Revealed About Academic Fraud, CBSSPORTS.COM (Mar. 7, 2015), http://www.cbssports.com/collegefootball/writer/jon-solomon/25096871/what-syracuses-ncaa-case-revealed-about-academic-fraud; Minnesota likewise had similar problems. NCAA Gives Minnesota Four Years Probation; No Postseason Ban, MINN. PUB. RADIO (Mar. 11, 1999), http://news.minnesota.publicradio.org/features/199903/11_newsroom_cheating/.
n13 An NCAA survey reports that football players spend 42 hours per week on athletic commitments and spend another 38.5 hours per week on academics. NCAA rules limit countable activities to twenty hours per week not to exceed four hours per day during season. Players are required to have one day off every calendar week. This can be structured so that players are required to have almost two weeks of practice without a day off from practice. Many football-related activities like travel and watching performance tape do not count towards the hour limitation. Making workouts and training sessions “voluntary” is another bypass to the counted hours limitation. See Countable Athletically Related Activities, NCAA, http://www.ncaa.org/sites/default/files/20-Hour-Rule-Document.pdf (last visited Oct. 2, 2016); NCAA GOALS Study of the Student-Athlete Experience, NCAA (Jan. 2016), http://www.ncaa.org/sites/default/files/GOALS_2015_summary_jan2016_final_20160627.pdf.
n14 Mark Dent, Michael Sanserino & Sam Werner, Do Colleges Drop the Ball with Student-Athletes? PITTSBURGH POST-GAZETTE (May 31, 2014), http://www.post-gazette.com/sports/college/2014/06/01/Do-colleges-drop-the-ball-with-student-athletes/stories/201406010120.
n15 Steve Berkowitz & Andrew Kreighbaum College Athletes Cashing in With Millions in New Benefits, USA TODAY (Aug. 19, 2015), http://www.usatoday.com/story/sports/college/2015/08/18/ncaa-cost–attendance-meals-2015/31904839/.
n16 Dan Friedell, Cost of Attendance Might be Price Smaller D-I Schools Must Pay to Win, AM. SPORTS NETWORK (Sept. 30, 2015), http://americansportsnet.com/cost-of-attendance-might-be-the-price-smaller-d-i-schools-must-pay-for-winning/.
n17 See, e.g., Chip Patterson, Northwestern Players Start Union Movement in College Athletics, CBSSPORTS.COM (Jan. 28, 2014), http://www.cbssports.com/college-basketball/news/northwestern-players-start-union-movement-in-college-athletics-24422762/; Ben Strauss, In a First, Northwestern Players Seek Unionization, N.Y. TIMES (Jan. 28, 2014), http://www.nytimes.com/2014/01/29/sports/ncaafootball/northwestern-players-take-steps-to-form-a-union.html.
n18 See, e.g., Ben Strauss, Northwestern Quarterback Makes His Case for Players’ Union, N.Y. TIMES (Feb. 18, 2014); Jeffrey Eisenband, Northwestern Football’s Union Effort: Bringing Context to the Saga, THEPOSTGAME (Aug. 22, 2015), http://www.thepostgame.com/blog/daily-take/201508/kain-colter-union-northwestern-football-fitzgerald-ncaa.
n19 O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015); Tom Farrey, Players, Game Makers Settle for $ 40M, ESPN (May 31, 2014) http://espn.go.com/espn/otl/story/_/id/11010455/college-athletes-reach-40-million-settlement-ea-sports-ncaa-licensing-arm.
n20 O’Bannon, 802 F.3d at 1055-56.
n21 Id. at 1052-53.
n22 Id. at 1053.
n23 Id. at 1079.
n24 Jenkins v. NCAA, 311 F.R.D. 532 (N.D. Cal. 2015).
n26 See, e.g., Joe Nocera, A Way to Start Paying College Athletes, N.Y. TIMES (Jan. 8, 2016), http://www.nytimes.com/2016/01/09/sports/a-way-to-start-paying-college-athletes.html; Jalen Rose, Paid College Athletes: A Reasonable Compromise, HUFFINGTON POST: THE BLOG (May 25, 2011, 9:37 AM), http://www.huffingtonpost.com/jalen-rose/paid-college-athletes-a-r_b_836449.html.
n27 See Donna Lopiano & Gerald Gurney, Don’t Reform NCAA — Replace It, INSIDE HIGHER ED (Sept. 11, 2014), https://www.insidehighered.com/views/2014/09/11/ncaa-cant-be-reformed-congress-should-replace-it-essay.
n28 See infra Section II.C. At the very least, the cost of defending the many lawsuits has to, at some point, start to threaten the viability of the NCAA itself. See, e.g., Roger Groves, A New Slew of College Player Lawsuits May Cost NCAA and Conferences a Billion Dollars, FORBES (Dec. 11, 2015), http://www.forbes.com/sites/rogergroves/2015/12/11/a-new-slew-of-college-player-lawsuits-may-cost-ncaa-and-conferences-a-billion-dollars/#25b1aba65acf.
n29 See, e.g., Kristen R. Muenzen, Weakening Its Own Defense? The NCAA’s Version of Amateurism, 13 MARQ. SPORTS L. REV. 257 (2003) (exploring evolution of amateurism defense over time) Coach K Backs NCAA Changes, ESPN (Oct. 3, 2013), http://www.espn.com/mens-college-basketball/story/_/id/9762424/duke-coach-mike-krzyzewski-says-ncaa-needs-new-definition-amateurism-report-says (discussing possible NCAA changes that would shift the definition of amateurism).
n30 See, e.g., THE INTERNATIONAL OLYMPIC COMMITTEE AND THE MODERN OLYMPIC GAMES (1950), http://www.olympic.org/Documents/OlympicCharter/Olympic_Charter_through_time/1950-Olympic_Charter.pdf (“You will be a true sportsman[, a]s an athlete . . . [i]f you take part in sport for the love of it . . . .” (emphasis omitted)).
n31 See, e.g., Anna McCullough & Aswin Tony Subketaew, Ancient Greek “Amateurism,” the NCAA and the Courts, 31 INT’L J. HIST. SPORT 1033 (2014); Kay Hawes, Debate on Amateurism has Evolved Over Time, NCAA NEWS, Jan. 3, 2000; Patrick Hruby, The Olympics Show Why College Sports Should Give Up on Amateurism, THE ATLANTIC (Jul. 25, 2014), http://www.theatlantic.com/entertainment/archive/2012/07/the-olympics-show-why-college-sports-should-give-up-on-amateurism/260275/.
n32 See GEOFFREY SHERINGTON & STEVE GEORGAKIS, SYDNEY UNIVERSITY SPORT 1852-2007: MORE THAN A CLUB 52 (2008) (providing the British Amateur Rowing Association definition of “amateur” as anyone “who is or has been by trade or employment for wages, a mechanic, artisan, or labourer, or engaged in any menial duty”); KENNETH L. SHROPSHIRE ET AL., THE BUSINESS OF SPORTS AGENTS (3d ed. 2016) (providing the Amateur Athletic Club of England definition: “any gentleman who has never competed in an open competition or for public money, or for admission money . . . [nor has] at any period of his life taught or assisted in the pursuit of athletic exercises as a means of livelihood; nor is a mechanic, artisan, or labourer”).
n33 INT’L OLYMPIC COMM., THE OLYMPIC GAMES 19 (1956), http://www.olympic.org/Documents/OlympicCharter/Olympic_Charter_through_time/1956-Olympic_Charter.pdf.
n35 THE INTERCOLLEGIATE ATHLETIC ASSOCIATIONN OF THE UNITED STATES: PROCEEDINGS OF THE FIRST ANNUAL MEETING 33 (Forgotten Books 2016) (1906), https://www.forgottenbooks.com/en/books/Proceedings_of_the_Annual_Convention_of_the_National_Collegiate_1000727416.
n36 Id. at 34.
n37 See id. at 26-27, 34, 36. A similar problem arose in the 1920s when students who had returned from the war played professional football on the weekends for pay. See Hawes, supra note 31.
n38 Laura Freedman, Pay or Play? The Jeremy Bloom Decision and NCAA Amateurism Rules, 13 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 673, 676-77 (2003).
n39 Id. at 677.
n40 See id. at 697.
n41 Id. at 677.
n42 NCAA, DIVISION I MANUAL § 2.9 (2016-17) (emphasis added).
n43 Amateurism, NCAA, http://www.ncaa.org/amateurism (emphasis added) (last visited Oct. 2, 2016).
n45 See, e.g., Daniel E. Lazaroff, The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist? 86 OR. L. REV. 329, 336-37 (2007); Matthew J. Mitten, Applying Antitrust Law to NCAA Regulation of “Big Time” College Athletics: The Need to Shift from Nostalgic 19th and 20th Century Ideals of Amateurism to the Economic Realities of the 21st Century, 11 MARQ. SPORTS L. REV. 1 (2000); Mitchell, supra note 7.
n46 See Amateurism, supra note 43; C. Peter Goplerud III, Stipends for Collegiate Athletes: A Philosophical Spin on a Controversial Proposal, 5 KAN. J.L. & PUB. POL’Y 125, 125-26 (1996).
n47 Many of these distinctions have become the source of public ridicule. See, e.g., Holly Anderson, Seeds of Change in NCAA Bagel Regulation, SPORTS ILLUSTRATED (Jan. 18, 2013), http://www.si.com/college-football/campus-union/2013/01/18/seismic-shift-in-ncaa-bagel-regulation; Joe Nocera, Opinion, The Stupidest N.C.A.A. Rule, N.Y. TIMES (Feb. 17, 2012, 12:56 PM), http://nocera.blogs.nytimes.com/2012/02/17/the-stupidest-n-c-a-a-rule/.
n48 Stephen A. Miller, The NCAA Needs to Let Someone Else Enforce Its Rules, THE ATLANTIC (Oct. 23, 2012), http://www.theatlantic.com/entertainment/archive/2012/10/the-ncaa-needs-to-let-someone-else-enforce-its-rules/264012/.
n49 See, e.g., KATHY ORTON, OUTSIDE THE LIMELIGHT: BASKETBALL IN THE IVY LEAGUE (2009); Angela J. Schneider & Robert B. Butcher, For the Love of the Game: A Philosophical Defense of Amateurism, 45 QUEST 460 (1993).
n50 See, e.g., RANDY R. GRANT ET AL., THE ECONOMICS OF INTERCOLLEGIATE SPORTS (2008); Adam Hoffer et al., Trends in NCAA Athletic Spending, 6 J. SPORTS ECON. 576 (2015); James V. Koch & Wilbert M. Leonard, The NCAA: A Socio-Economic Analysis: The Development of the College Sports Cartel from Social Movement to Formal Organization, 37 AM. J. ECON. & SOC. 225 (1978).
n51 See, e.g., Travis L. Brown, College Football Recruiting Has Created an Industry of Its Own, STAR-TELEGRAM (Jan. 13, 2013), http://www.star-telegram.com/sports/article3833614.html; Jon Solomon, Has the College Football Recruiting Media Industry Hit a Bubble with Fans?, AL.COM (Feb. 4, 2014). http://www.al.com/sports/index.ssf/2014/02/has_the_college_football_recru.html.
n52 See, e.g., Reuben Fischer-Baum, Infographic: Is Your State’s Highest-Paid Employee a Coach? (Probably), DEADSPIN (May 9, 2013), http://deadspin.com/infographic-is-your-states-highest-paid-employee-a-co-489635228; Emily Jane Fox, The Highest Paid Public University Presidents, CNN MONEY (June 8, 2015), http://money.cnn.com/2015/06/07/pf/college/highest-paid-public-university-presidents/; NCAA Salaries: NCAAF Coaches, USA TODAY, http://sports.usatoday.com/ncaa/salaries/ (last visited Sept. 29, 2016); NCAA Salaries: NCAAF Assistant Coaches, USA TODAY, http://sports.usatoday.com/ncaa/salaries/football/assistant (last visited Sept. 29, 2016).
n53 See Cliff Peale, Athletics Cost Colleges, Students Millions, CINCINNATI ENQUIRER (Sept. 15, 2013), http://www.usatoday.com/story/news/nation/2013/09/15/athletics-cost-colleges-students-millions/2814455/; Brad Wolverton et al., Sports at Any Cost, HUFFINGTON POST (Nov. 15, 2015), http://projects.huffingtonpost.com/ncaa/sports-at-any-cost.
n54 See, e.g., Jason Belzer, The Priorities of University Presidents: Where Do College Athletics Fit In?, FORBES.COM (Nov. 23, 2015), http://www.forbes.com/sites/jasonbelzer/2015/11/23/the-priorities-of-university-presidents-where-do-college-athletics-fit-in/#1c19912e31b9.
n55 See, e.g., KRISTI DOSH, SATURDAY MILLIONAIRES: HOW WINNING FOOTBALL BUILDS WINNING COLLEGES (2013); Devin G. Pope & Jaren C. Pope, The Impact of College Sports Success on the Quantity and Quality of Student Applications, 75 SOUTHERN ECON. J. 750, 750-53 (2009).
n56 See, e.g., Adam G. Walker, Division I Intercollegiate Athletics Success and the Financial Impact on Universities, SAGE OPEN, Oct.–Dec. 2015, at 1, http://sgo.sagepub.com/content/spsgo/5/4/2158244015611186.full.pdf.
n57 See, e.g., Brett McMurphy, SEC Schools to Each Receive Record $ 31.2 Million Payout, ESPN (May 29, 2015), http://espn.go.com/college-sports/story/_/id/12974161/southeastern-conference-distribute-record-435m-revenue-member-schools.
n58 Steve Berkowitz, Tax Return Shows SEC Made $ 527.4 Million in First Year of CFP, SEC Network, USA TODAY (Jan. 20, 2016), http://www.usatoday.com/story/sports/college/2016/01/19/sec-tax-return-college-football-playoff-sec-network-mike-slive/79006606/.
n59 See generally SEC Network — TV Schedule, SEC, http://www.secsports.com/tv-schedule (last visited Sept. 29, 2016).
n60 See, e.g., ANDREW ZIMBALIST, UNPAID PROFESSIONALS: COMMERCIALISM AND CONFLICT IN BIG-TIME COLLEGE SPORTS (1999); Fitt, supra note 3, at 556-59; Stanton Wheeler, Rethinking Amateurism and the NCAA, 15 STAN. L. & POL’Y REV. 213, 213-15 (2004).
n61 See, e.g., Sean M. Hanlon, Athletic Scholarships as Unconscionable Contracts of Adhesion: Has the NCAA Fouled Out?, 13 SPORTS LAW. J. 41 (2006); Stephen M. Schott, Give Them What They Deserve: Compensating the Student-Athlete for Participation in Intercollegiate Athletics, 3 SPORTS LAW. J. 25, 26 (1996).
n62 See, e.g., Derek Van Rheenen, Exploitation in College Sports: Race, Revenue, and Educational Reward, 48 INT’L REV. SOC. SPORT 550 (2013); Ahmed E. Taha, Are College Athletes Economically Exploited?, 2 WAKE FOREST J.L. & POL’Y 69 (2012).
n63 See, e.g., BILLY HAWKINS, THE NEW PLANTATION: BLACK ATHLETES, COLLEGE SPORTS, AND PREDOMINATELY WHITE NCAA INSTITUTIONS (2010); Joseph N. Cooper, Personal Troubles and Public Issues: A Sociological Imagination of Black Athletes’ Experiences at Predominately White Institutions in the United States, 2 SOC. MIND 261, 264-66 (2012).
n64 Kathryn Young, Deconstructing the Façade of Amateurism: Antitrust and Intellectual Property Arguments in Favor of Compensating Athletes, 12 VA. SPORTS & ENT. L.J. 338 (2013); The Fab Five, (ESPN Films 2011).
n65 Jon Solomon, Ed O’Bannon Plaintiffs: EA Sports Used Actual Game Footage to Create Video Game Players, AL.COM (June 19, 2013), http://www.al.com/sports/index.ssf/2013/06/ed_obannon_plaintiffs_ea_sport.html. This differs from the EA Sports franchises that center around professional athletes where actual names and numbers are used and the athletes sometimes provide in-studio footage to aid in the creation of the avatars.
n66 See, e.g., MURRAY SPERBER, BEER AND CIRCUS: HOW BIG-TIME COLLEGE SPORTS IS CRIPPLING UNDERGRADUATE EDUCATION (2000); Patricia S. Miller & Gretchen Kerr, The Athletic, Academic and Social Experiences of Intercollegiate Student-Athletes, 25 J. SPORT BEHAV. 346 (2002).
n67 See, e.g., Eddie Comeaux & Keith C. Harrison, A Conceptual Model of Academic Success for Student-Athletes, 40 EDUC. RESEARCHER 235 (2011); Janice M. Jordan & Eric L. Denson, Student Services for Athletes: A Model for Enhancing the Student-Athlete Experience, 69 J. COUNSELING & DEV. 95 (1990).
n68 See, e.g., Bradley David Ridpath, Gerald Gurney & Eric Snyder, NCAA Academic Fraud Cases and Historical Consistency: A Comparative Content Analysis, 25 J. LEGAL ASPECTS SPORT 75 (2015).
n69 See, e.g., Josephine R. Potuto & James O’Hanlon, National Study of Student-Athletes Regarding Their Experiences as College Students, 41 C. STUDENT J. 947 (2007); Joy Gaston Gayles & Shouping Hu, The Influence of Student Engagement and Sport Participation on College Outcomes Among Division I Student Athletes, 80 J. HIGHER EDUC. 315 (2009).
n70 See, e.g., Timothy Davis, African-American Student-Athletes: Marginalizing the NCAA Regulatory Structure?, 6 MARQ. SPORTS L.J. 199 (1995); Tiffany Marie Peters, Academically Underprepared Student-Athletes: A Dilemma in Higher Education, INDIANA AHPERD J., Fall 2013, at 33 (2013), http://www.inahperd.org/wp-content/uploads/Iahperd-Volume-42-Number-3-Fall-2013.pdf#page=35; Kenneth L. Shropshire, Colorblind Propositions: Race, the SAT, & the NCAA, STAN L. & POL’Y REV., Winter 1997, at 141; Jeffrey M. Waller, A Necessary Evil: Proposition 16 and Its Impact on Academics and Athletics in the NCAA, 1 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 189 (2003).
n71 See, e.g., Leah P. Hollis, Service Ace? Which Academic Services and Resources Truly Benefit Student Athletes, 3 J. C. STUDENT RETENTION 265 (2001); Josephine R. Potuto, Academic Misconduct, Athletics Academic Support Services, and the NCAA, 95 KY. L.J. 447 (2006); Alyssa Ego, Student-Athletes and Academic Peer Mentors: A Case Analysis of Expert/Novice Relationships in Intercollegiate Athletics (Apr. 25, 2013) (unpublished master’s thesis, University of Arizona), http://hdl.handle.net/10150/293640.
n72 See, e.g., Christopher Lai & Matthew S. Wiggins, Burnout Perceptions Over Time in NCAA Division I Soccer Players, 7 INT’L SPORTS J. 120 (2003); Herbert D. Simons et al., Academic Motivation and the Student Athlete, 40 J. C. STUDENT DEV. 151 (1999).
n73 See, e.g., Tanya R. Upthegrove et al., Big Money Collegiate Sports: Racial Concentration, Contradictory Pressures, and Academic Performance, 80 SOC. SCI. Q. 718, 722 (1999).
n74 Peter Adler & Patricia A. Adler, From Idealism to Pragmatic Detachment: The Academic Performance of College Athletes, 58 SOC. EDUC. 241 (1985); Kavitha A. Davidson, Why Don’t Colleges Care About Athletes’ Grades?, BLOOMBERGVIEW (Aug. 21, 2014), https://www.bloomberg.com/view/articles/2014-08-21/why-don-t-colleges-care-about-athletes-grades.
n75 Joshua Castle, Robin Ammon & Les Myers, The 9 Credit Rule: A Look at Its Impact on Academic Advising for Intercollegiate Football Athletes, 5 J. PHYSICAL EDUC. SPORTS MGMT. 59 (2014); Cherese F. Fine, The Dynamics Between Intercollegiate Athletics & Academics: A Phenomenological Case Study Approach (May 2015) (unpublished Ph.D. dissertation, Clemson University), http://tigerprints.clemson.edu/all_dissertations/1500.
n76 Kristina M. Navarro, An Examination of the Alignment of Student-Athletes’ Undergraduate Major Choices and Career Field Aspirations in Life After Sports, 56 J. C. STUDENT DEV. 364 (2015); Cathy Monteroso, The Lived Experiences of the Student Athletes and the Phenomenon of Academic Clustering (Aug. 2015) (unpublished Ph.D. dissertation, Northcentral University), http://gradworks.umi.com/37/28/3728290.html.
n77 Brad Wolverton, Many College Athletes Say They Want More Time Away from Sports, CHRON. HIGHER EDUC. (Jan. 12, 2016), http://chronicle.com/blogs/ticker/many-college-athletes-say-they-want-more-time-away-from-sports/107806.
n78 See Davidson, supra note 74.
n79 Press Release, NCAA, NCAA Launches Latest Public Service Announcements, Introduces New Student-Focused Website (Mar. 13, 2007), http://fs.ncaa.org/Docs/PressArchive/2007/Announcements/NCAALaunchesLatestPublicServiceAnnouncementsIntroducesNewStudent-FocusedWebsite.html.
n80 Macy McCarty, Academic Progress or Academic Failure?: Reform of the NCAA Academic Performance Program, 4 MISS. SPORTS L. REV. 302, 313-17 (2014).
n81 See Academic Progress Rate Explained, NCAA, http://www.ncaa.org/about/resources/research/academic-progress-rate-explained (last visited Sept. 29, 2016).
n82 I have argued this elsewhere. See William W. Berry III, Educating Athletes: Re-Envisioning the Student-Athlete Model, 81 TENN. L. REV. 795 (2014).
n83 D. Randall Smith, It Pays to Bend the Rules: The Consequences of NCAA Athletic Sanctions, 58 SOC. PERSP. 97 (2015).
n84 See sources cited supra note 18.
n85 Nw. Univ. Emp’r & Coll. Athletes Players Ass’n (CAPA), 2014-15 N.L.R.B. Dec. P 15781, at *1 (2014), dismissed on other grounds, 362 NLRB 167 (2015).
n86 See id.
n87 Id. at *9.
n89 Id. at *12.
n90 See id. at *6, *8, *15, *16.
n91 Id. at *12.
n92 See Complaint, Hartman v. NCAA, No. 3:15-cv-00178-JCS, 2015 WL 163575 (N.D. Cal. Jan. 13, 2015); Complaint, Gregory-McGhee v. NCAA, No. 3:14CV01777, 2014 WL 1509247 (N.D. Cal. Apr. 17, 2014); Complaint, Alston v. NCAA, No. 3:14CV01011, 2014 WL 843274 (N.D. Cal. Mar. 5, 2014); Jenkins v. NCAA, 311 F.R.D. 532 (N.D. Cal. 2015)
n93 See Complaint, Hartman, No. 3:15-cv-00178-JCS, 2015 WL 163575.
n94 See Complaint, Gregory-McGhee, No. 3:14CV01777, 2014 WL 1509247.
n95 See Complaint, Alston, No. 3:14CV01011, 2014 WL 843274.
n96 See Jenkins, 311 F.R.D. 532.
n97 See complaints cited supra note 92; see also Zachary Stauffer, Does the NCAA Rule College Sports Like a “Cartel”?, FRONTLINE (June 11, 2014), http://www.pbs.org/wgbh/frontline/article/does-the-ncaa-rule-college-sports-like-a-cartel/.
n98 See Nw. Univ. Emp’r & Coll. Athletes Players Ass’n (CAPA), 2014-15 N.L.R.B. Dec. P 15781, at *2 (2014) (establishing the college institution as an employer).
n99 Indeed, the major shift in the courts has been one from believing that there is no market because of amateurism, see, e.g., Banks v. NCAA, 977 F.2d 1081 (7th Cir. 1992); Gaines v. NCAA, 746 F. Supp. 738 (M.D. Tenn. 1990), to the assumption that there is a market, O’Bannon v. NCAA, 802 F.3d 1049, 1078-79 (9th Cir. 2015).
n100 See NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 (1984); Law v. NCAA, 134 F.3d 1010 (10th Cir. 1998).
n101 Bd. of Regents, 468 U.S. 85.
n102 Id. at 89.
n103 Id. at 94.
n104 The infancy of ESPN, which had no rights to televise football games at the time, was also part of this phenomenon. BILL RASMUSSEN, SPORTS JUNKIES REJOICE!: THE BIRTH OF ESPN (1983).
n105 See Mark Dent, Television is the Ruling Body of College Sports, PITTSBURGH POSTGAZETTE (Aug. 26, 2012), http://www.post-gazette.com/sports/college/2012/08/26/Television-is-the-ruling-body-of-college-sports/stories/201208260123.
n106 Bd. of Regents, 468 U.S. at 89-90.
n107 Id. In hindsight, this fear seems a bit shortsighted. See 2014 National College Football Attendance, NCAA, http://fs.ncaa.org/Docs/stats/football_records/Attendance/2014.pdf (last visited Sept. 29, 2016).
n108 Bd. of Regents, 468 U.S. at 88.
n110 Id. at 120.
n111 Id. at 118.
n112 Id. at 115-16
n113 Id. at 116.
n115 Id. at 120.
n116 Law v. NCAA, 134 F.3d 1010, 1012 (10th Cir. 1998). The REC rule limited the salaries of restricted-earnings coaches to $ 16,000 in an attempt to protect the hiring of graduate assistants. Id. Coaches had been filling that position with recently fired head coaches from other institutions. Id.
n118 Id. at 1024.
n119 The Postbaccalaureate Bylaw provides that a student-athlete may not participate in intercollegiate athletics at a postgraduate institution other than the institution from which the student earned her undergraduate degree. Smith v. NCAA, 139 F.3d 180, 184 (3d Cir. 1998).
n120 Id. at 187.
n121 Id. at 185.
n122 E.g., Banks v. NCAA, 977 F.2d 1081 (7th Cir. 1992); Agnew v. NCAA 683 F.3d 328 (7th Cir. 2012); Gaines v. NCAA, 746 F. Supp. 738 (M.D. Tenn. 1990); Bloom v. NCAA, 93 P.3d 621 (Colo. App. 2004).
n123 Over time, commentators increasingly took issue with this assessment. See, e.g., WALTER BYERS, UNSPORTSMANLIKE CONDUCT: EXPLOITING COLLEGE ATHLETES, 374, 384 (1995); Lee Goldman, Sports and Antitrust: Should College Students Be Paid to Play?, 65 NOTRE DAME L. REV. 206, 207-08 (1990); C. Peter Goplerud III, Pay for Play for College Athletes: Now, More Than Ever, 38 S. TEX. L. REV. 1081 (1997); Lazaroff, supra note 45; James V. Koch, The Economic Realities of Amateur Sports Organization, 61 IND. L.J. 9, 12 (1985); Matthew J. Mitten, University Price Competition for Elite Students and Athletes: Illusions and Realities, 36 S. TEX. L. REV. 59, 77-78 (1995); Gary R. Roberts, The NCAA, Antitrust, and Consumer Welfare, 70 TUL. L. REV. 2631 (1996).
n124 O’Bannon v. NCAA, 802 F.3d 1049, 1055 (9th Cir. 2015).
n125 Id. at 1055-56.
n128 Id. at 1056-57.
n129 Id. at 1057-58.
n130 Id. at 1058.
n131 Id. at 1057-58.
n132 Id. at 1058.
n133 Id. at 1060.
n134 Id. at 1066.
n136 Id. at 1059.
n137 Id. at 1075.
n138 Id. at 1074.
n139 Id. at 1078.
n141 Id. at 1079.
n142 Id. at 1075-76.
n143 Id. at 1079.
n146 This argument clearly turned out to be incorrect and quite shortsighted. See, e.g., College Athletics Revenues and Expenses – 2008, ESPN, http://espn.go.com/ncaa/revenue (last visited Sept. 21, 2016) (showing ticket and television revenue are not mutually exclusive concepts).
n147 O’Bannon, 802 F.3d at 1053.
n148 Id. at 1078-79.
n149 Id. at 1079.
n151 Id. at 1073.
n152 See, e.g., Marc Edelman, Reevaluating Amateurism Standards in Men’s College Basketball, 35 U. MICH. J.L. REFORM 861, 871-77 (2002) (the NCAA “reap[s] significant revenues from the players’ work product”); Schott, supra note 61, at 36-37 (college sports are “marketed, packaged and sold just like other commercial products”).
n153 Power 5 Leagues Pass Cost of Attendance Proposal, Don’t Stop There, CBSSPORTS.COM (Jan. 17, 2015), http://www.cbssports.com/collegefootball/eye-on-college-football/24970569/power-5-leagues-pass-cost-of-attendance-proposal-dont-stop-there.
n154 See Bloom v. NCAA, 93 P.3d 621, 622-23 (Colo. App. 2004) (allowing standing to challenge NCAA).
n155 See generally, e.g., Jeffrey J.R. Sundram, The Downside of Success: How Increased Commercialism Could Cost the NCAA Its Biggest Antitrust Defense, 85 TUL. L. REV. 543 (2010).
n156 See, e.g., Jason Kirk, NCAA President Faces Fact that Colleges Sell Jerseys with Real Player Numbers, SBNATION (June 20, 2014), http://www.sbnation.com/college-football/2014/6/20/5827802/ncaa-player-jerseys-numbers-mark-emmert-obannon (taking issue with this argument).
n157 See cases cited supra note 92.
n158 See Jon Solomon, Inside College Sports: Mark Emmert’s Pay, NCAA Legal Fees Increase, CBSSPORTS.COM (June 30, 2015), http://www.cbssports.com/collegefootball/writer/jon-solomon/25229481/inside-college-sports-mark-emmerts-pay-ncaa-legal-fees-increase.
n159 Non-revenue sports also would likely disappear in such a scenario. See Pat Forde, U.S. Olympic Committee ‘Candidly Concerned’ Non-Revenue College Sports Will Be Cut, YAHOO! SPORTS (Apr. 1, 2015), http://sports.yahoo.com/news/u-s–olympic-committee–candidly-concerned–non-revenue-college-sports-will-be-cut-212917571-ncaab.html.
n160 See NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 (1984).
n161 2014-15 SEC Revenue Distribution, SEC (May 29, 2015), http://www.secsports.com/article/12975224/2014-15-sec-revenue-distribution.
n163 Dividing this money evenly would be more consistent with the concept of tying the funds to participation in the university, rather than as a professional in an open market.
n164 Hruby, supra note 31.
n166 Indeed, I have argued elsewhere that it should be the other way around, with athletics giving to academics. See William W. Berry III, Playoff Profits for Academic Programs, 5 MISS. SPORTS L. REV. 1 (2016).
n167 I have argued for the benefits of unions in this way in other contexts. William W. Berry III, How Unions Can Save the NCAA, SLATE (Mar. 31, 2014), http://www.slate.com/articles/business/moneybox/2014/03/northwestern_football_players_allowed_to_unionize_how_labor_unions_can_save.html.
n169 See Clarett v. NFL, 369 F.3d 124, 131 (2d Cir. 2004); Mackey v. NFL, 543 F.2d 606, 623 (8th Cir. 1976).
n170 See generally NCAA v. Smith, 525 U.S. 450, 470 (1999).