Why history matters in the U.S. Supreme Court case about student athletes (opinion)


This year, March Madness includes competition both on the court and in court. College sports fans can watch games leading to the Final Four in basketball — which is good news after the cancellation of last year’s championship tournaments. The bonus this year is that they also can follow another main event: a case now being argued before the U.S. Supreme Court pitting the National Collegiate Athletic Association against former West Virginia University football player Shawne Alston and other student athletes about its eligibility rules over compensation.

The Supreme Court justices will not hand down their ruling until July in this landmark case involving the rights of student athletes to be paid. Meanwhile, it’s timely to review the opening arguments. Deliberations over the next three months will most likely involve legal precedents associated with the Sherman Anti-Trust Act. In addition to law and economics, however, this case is special because the opening arguments have shown that in reforming college sports, history matters.

The arguments of 2021 were shaped in 1984. Thirty-seven years ago, in an earlier case involving the NCAA, Justice John Paul Stevens set the stage for NCAA v. Alston by writing in the majority opinion that the “N.C.A.A. plays a critical role in the maintenance of a revered tradition of amateurism in college sports.”

Today no one disagrees with that claim. Yet it is unclear as to its meaning. What exactly has been the character and content of the NCAA’s “revered tradition of amateurism in college sports”? Seth Waxman, the lawyer for the NCAA, built his historical foundation with his opening remark: “For more than 100 years, the distinct character of college sports has been that it is played by students who are amateur, which is to say that they are not paid for their play.”

The NCAA and its lawyers would have us believe that if the NCAA were to lose this case, amateur athletics at our colleges and universities would lose their guardian of sound values and practices.

However, a team of six historians led by Ronald Smith, professor emeritus of Pennsylvania State University, has filed an amicus brief that documented a markedly different record of NCAA actions and advocacy on amateurism. Smith and historians Taylor Branch, Richard Crepeau, Sarah Fields, Jay Smith and me have presented in our brief a trail of tears showing that frequently the NCAA has, in fact, accommodated financial compensation for student athletes when convenient and beneficial for the NCAA. An apt metaphor for NCAA participation has been “the electric slide,” in which “amateurism” has been conveniently redefined several times over the years to allow and even encourage some compensation. The terms usually are to the benefit of the NCAA and college athletic departments in their quest to compete for talent and to attract spectators. These concessions by the NCAA often are reluctant and often have only incidental concern for the rights of student athletes.

The NCAA likes to invoke an embellished past that celebrates its creation in 1906 during a series of meetings of college leaders with President Theodore Roosevelt. In fact, the organization was founded as the Intercollegiate Athletics Association of the United States, or IAAUS, and only later became the NCAA. More substantive is that the historic universities, such as Yale, Princeton and Harvard — which, in that era, also had the most powerful sports programs in the nation — did not attend those formative meetings or join the association. The main agenda dealt with violence and injuries on the football field, not a code of amateurism.

Moreover, one finds little evidence since then that the NCAA was effective in establishing or enforcing standards of amateurism in college sports nationwide. The NCAA had no significant role in policies or regulation of college student athlete definitions or requirements until after World War II. Starting in 1951, the NCAA gave primary attention to policies involving television and revenues and dealing with concerns about how to halt declining spectator attendance at college football games nationwide.

Indeed, it is difficult to identify a golden age of amateurism in college sports, whether in 1852, 1922 or 1962. Over time, the NCAA eventually endorsed colleges being allowed to offer full athletic grants in aid — a significant shift from their prior objection to such practices. The NCAA’s operational definition of amateurism for college athletes at one point in the late 1970s was even stretched to allow a student to be an amateur college athlete in one sport while being a paid professional athlete in another.

In our amicus brief, we tried as historians to be precise and disciplined in fusing documents to our main argument and interpretation. We took care to understate our case and avoid exaggeration. We chose to focus on big-time spectator sports such as FBS football and NCAA Division I basketball. Our brief is concise and does not exhaust all the sources and events related to our story.

For example, one significant episode we did not cover in our brief is that of the Pacific Coast Conference between 1946 and 1959, in which discovery of “slush funds” organized by alumni boosters to pay recruited athletes led to suspension and severe penalties for four member institutions: the University of Washington; the University of Southern California; the University of California, Berkeley; and the University of California, Los Angeles. Players on those teams were penalized by being limited to the number of games they could play in a season, and the football teams from the four culprit universities were declared ineligible for the Rose Bowl. Tensions and conflicts among member institutions were so strong that the conference was dissolved by 1959. One legacy of the scandal was it showed that conferences and their member institutions — not the NCAA — were the real sources of reforms and policies to enforce student amateurism.

A corollary is that in reviewing the history of the NCAA, it is difficult to discern any adherence to a coherent definition or ideal of a student athlete over time. The problem has gotten worse, not better in the 21st century. A new generation of serious student athletes and their families have been forthright in stating that they have devoted a lot of time and money to training and preparation to play on a college varsity squad and perhaps to receive a grant in aid. Furthermore, university officials’ tacit compliance with and encouragement of “one and done” strategies highlight the professional connection and aspiration of college and professional sports for some athletes, especially those in big-time men’s college basketball.

Adding to the combustible discussion is that the proliferation of new social media now provides young athletes opportunities for endorsements, publicity and income that were not available to an earlier generation. A good example of conflicts with the NCAA’s definitions of athletic amateurism is the case of Hunter Woodhall, an outstanding sprinter who is a double amputee and who gained national fame as a member of the University of Arkansas’s championship track and field team. According to a New York Times article on March 29, Woodhall’s success story as a student and athlete had gained him 3.1 million social media followers and an estimated potential $800,000 in income. Woodhall left college competition after waiting (and waiting) to hear from the NCAA on a release from its compensation restrictions for student athletes.

In addition to the example of Woodhall in track and field, Ronald Smith, principal author of our brief, has compiled numerous cases documenting how swimmers who won international championships each received hundreds of thousands of dollars in awards without violating NCAA eligibility requirements. Smith’s roster includes Olympic gold medalists who at the same time were NCAA champions. Foremost are Katie Ledecky of the NCAA championship Stanford University team, who was awarded $300,000 for her Olympic achievements, and Joseph Schooling of Singapore, the 2016 Olympic gold medalist in the 100-meter butterfly who also swam for the NCAA championship University of Texas team. As such, they illustrate the changing landscape of what is meant in terms of commitment and reward for students who are outstanding athletes.

The amicus brief we filed looks to the past to provide a guide to creating an appropriate, realistic New Deal for student athletes. Central to a new compact is to acknowledge that a defining characteristic of college sports is that they are played by students enrolled at colleges and universities. That distinguishes intercollegiate athletics from professional leagues. Whether or not those student athletes may compete in college sports while receiving varying forms of compensation for their athletic achievements is not necessarily an indelible deciding factor.

Therefore, students and their families, including their advisers, along with colleges and conference and NCAA officials, should discuss and agree on appropriate terms for each student, college and conference. Guidelines should include consideration of student athletes’ rights for representation and for pursuing opportunities. That includes the possibility of income from social media platforms and other forms largely unknown to college students or college officials in an earlier era. Such measures would help to transform the big business of college sports into the serious business of an educational institution concerned about its students.

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