By Joshua Lambert aka joshuadusarmy

The National Collegiate Athletic Association or NCAA was founded on December 28th, 1905 and was officially constituted as the Intercollegiate Athletic Association of the United States by President Theodore Roosevelt and its 62 founding members on March 31st, 2006. The Association was founded in response to the numerous injuries and even deaths incurred by a popular football formation called the “flying wedge”. It was not until 1910 that the Association would take its name as the NCAA.

A student athlete is considered a “professional” and thus ineligible to play collegiate sports if any of these guidelines are not followed; 1) Are paid (in any form) or accept the promise to pay for competing in an athletics contest. 2) Sign a contract or verbally commit with an agent or a professional sports organization. 3) Use your athletic skills for pay in any form, i.e., you are paid for an appearance in a TV commercial, exhibition, demonstration or clinic. 4) Participate with a professional team. 5) Participate with an amateur sports team (club or National Team) and receive any salary, incentive payment, award, gratuity, educational expenses or expense allowances (other than the competition and training apparel, equipment, and actual and necessary travel, room and board expenses). It should be said that each Institution is part of a conference (less the independent schools) and have additional eligibility rules and requirements. The rules themselves may seem very to the point and clear. When in fact they are very broad and are left open to the interpretation of the NCAA.

Recently a student athlete was ruled ineligible permanently, because he allowed a former professional athlete (now TV anchor) to pay for his dinner. This action was taken based on the rule that the athlete had used his athletic skill for this benefit. The TV anchor is in no way affiliated with an professional team yet had been a friend to this student dating back to his High School days. Yet the NCAA who repeatedly states that their main concern is education, took away this students scholarship and his ability to better his life not only professionally on the field but in the classroom. This can only be seen as a hypocrisy and an injustice.

“The NCAA is not a business”, this is the official statement of the NCAA since its inception. The NCAA is allowed many tax exemptions due to its not for profit status. This is a gross and misleading lie given to the public. CBS television is giving the NCAA 6.1 Billion dollars over the next 11 years simply for the rights to broadcast March Madness (the national basketball championship tournament). CBS will take in roughly a $100,000 dollars for a 30- second commercial in the first few rounds. The rate would increase to $1 million dollars for the later rounds. The NCAA will take in nearly $600 million dollars between TV rights and ticket sales, this alone is nearly 96% of the NCAA’s annual revenue. According to former NCAA chairman Myles Brand, intercollegiate sports are different from professionals in that they are not in the business of, “creating profits for owners and shareholders”. Brand also would also go on to say the reason colleges sponsor sports is that, “sports have a positive impact on the lives of young people”. Two points here: sports are creating profits for a lot of people, and the evidence of the impact on the lives of young people is mixed, at best.

The overall internal contradictions of the NCAA appear in everything the association oversees. In an address given by Myles Brand, he would go on to say this, “student-athletes should not be commercially exploited,” because, “They are students, not professionals.” Continuing the contradiction Brand would carry on in saying that it is not exploitation when the universities use the image of the athlete to promote itself or to sell its athletic merchandise. Nor is it excessive commercialism when the university sells its logo, endorses a commercial product, uses its athletic uniforms to advertise a product, advertises that product on the athletic scoreboards, or sells signage for a commercial product. Basically using its marketable assets to promote financial gain, just like any other “business” would do. The student athletes mentioned are those that make the brand marketable. Without for example Tim Tebow wearing number fifteen at Florida, it would not have been the best selling college jersey each year. Yet the NCAA uses a “loophole” and markets these jerseys without the athletes name on the back. Thus leaving the student without a legal right to revenue generated by the very jersey that student made marketable. This is not done unintentionally by the universities and the NCAA. Common sense would permit that much.

Recently in the news a lot of “buzz” was created when a Boise St. kicker missed two field goals that could have clinched a BCS (Bowl Championship Series) Bowl game for the university. As well as an unprecedented chance for a non-BCS school to play for the national championship. That said the primary point made on that information was that the kicker had cost his school nearly $20 million dollars in revenue that would have been generated from being in a BCS bowl. Revenue shared by the NCAA from TV, merchandise, concessions and ticket sales. This is an astronomical amount for a small school such as Boise St. However they will not make it to the championship game nor likely play on a BCS bowl due to this one loss. This allowed the NCAA to breathe a sigh of relief. Having a non BCS school make it to their championship game would be very costly to them. The bigger name schools from the bigger conferences generally attract more attention and thus more revenue. Yet this also spared the NCAA from another year of why an undefeated school wasn’t permitted to play for the national championship. The computer system the NCAA uses to decide the rankings is literally designed to make it nearly impossible for a non BCS school to make the championship game. Several times highly ranked undefeated teams have had to settle for alternate Bowl games because a computer and not on the field play decided they were not good enough to have a chance to win a championship.

Seemingly at every turn the NCAA appears to be run as if it is a business. If this is the obvious conclusion then the students that generate the billions of dollars for them must be considered employees. Employees deserve benefits, and least of all to be in some manner, paid. In 2006 Myles Brand, then the chairman of the NCAA had an annual salary of $935,000. This would seem the norm for any high ranking official at the head of a massive business. In 2009 in the middle of a recession Brand made over $1.1 million dollars. Collectively the 14 NCAA executives made collectively $6 million dollars that year. Comparatively the American Council on Education paid its president $507,000 in total compensation for the same year. The obvious reason that NCAA executives pull in such salaries is revenue earned. Considering the NCAA will make $776 million a year for the next 14 years from the NCAA tournament TV rights alone.

Edward Gary Van Horn vs. NCAA marked a landmark case against the NCAA. Van Horn was a football player for California State Polytechnic College who had been killed in a plane crash returning from a game in Ohio in 1960. Van Horn had received an athletic scholarship from funds contributed to the college by a group known as the Mustang Booster club. As athletic director of the College, its coach would periodically submit a budget to the booster club, including the names of athletes the he was recommending for financial assistance during the ensuing school year. The funds contributed by the club were then distributed by the college to the students who qualified. This was a practice that was legitimized by the NCAA’s 1956 scholarship decision. Van Horn’s athletic scholarship, which covered tuition, books, and some apartment expenses, was awarded for one year only. This freed the university from the four-year commitment often made to athletes at other universities during this era. Before the 1958 season Van Horn had told his father that he had been offered a “pretty good deal to play football”. He would receive similar deals in 1959 and 1960. Because Van Horn was married and had a family Van Horn told his father he could not play football without some kind of financial support. In court the Industrial Accident Commission and the NCAA argued that this scholarship had been a gift not a payment for services rendered. To support that claim they pointed out that the scholarship had been awarded for an entire year and that it was not dependent on ay seasonal participation in sports; even if Van Horn had not played a single game, he would still have received the scholarship during that year. The school also argued that the scholarship was awarded on the basis of scholastic records, rather than athletic prowess, and that the coach had not been consulted in the application process. In the university’s view, Van Horn was not rendering a service by playing football and was therefore not an employee. In its 1963 decision against the Commission and the university, this California district court of appeals pointed out that because a recipient of athletic scholarships “must be a member of an athletic team,” athletic prowess was a factor in the award. The court also noted that previous rulings on this matter have held that one may have the dual capacity of a student and an employee with respect to a collegiate activity. Because it believed that Van Horn had received the scholarship because of his athletic prowess and participation, the court concluded that his scholarship was an employment contract. As a result of this decision, death benefits were awarded to the Van Horn family.

The Van Horn decision immediately sent shock waves through the NCAA. Almost immediately the NCAA contacted Marcus Plant, a University of Michigan tort law expert and a member of the NCAA Council. Plant prepared for the NCAA a broad strategy that guided the NCAA through the minefield of workers’ compensation court cases over the next twenty years. In December of 1964 a memorandum was sent out to faculty representatives, athletic directors, and officers of allied conferences by Robert F. Ray, then president of the NCAA, and Everett Barnes, its secretary treasurer. The December Memorandum urged the NCAA institutions to have their attorneys review the wording if their grants-in-aid policies in light of state workers’ compensation statutes, and it provided specific recommendations as to what revisions should be made so that language would not suggest an employment relationship. The key to the NCAA’s workers compensation strategy was to avoid the impression that athletes had to participate in sports in order to retain their athletic scholarships. However Everett Barnes was in favor of an alternate strategy to eliminate the workers’ compensation issue for the NCAA. Barnes suggested that the Van Horn decision provided a good reason for the NCAA to pass legislation that would award financial assistance on the basis of need. Barnes based his opinion on discussions with a New York attorney who advised that if scholarships are not contingent on athletic activity, athletes would not come under workers’ compensation as there would be “no penalty to students when and if they cease athletic endeavors.” Taking this advice likely could have eliminated the workers’ compensation problem. But it would also have forced coaches to relinquish the control that comes from being able to award or withdraw financial aid. In the end, the NCAA chose to prop up the myth of amateurism rather than pass legislation to restore the real thing.

In the decade following the Van Horn decision, the NCAA continued to avoid language in its constitution and by-laws that would suggest that scholarships are employment contracts. Yet during this same period the NCAA passed legislation that actually increased the university’s ability to remove scholarships from athletes who decided not to participate in sports or who, because of injury or lack of athletic ability, could no longer contribute to the teams’ success. In other words, at the same time that NCAA officials were doing everything in their power to deny scholarships constituted employment contracts, they were diligently seeking innovative ways to have non-productive or non cooperative athletes fired. In the 1960’s many athletic directors were concerned that athletes were accepting four-year-grants-in-aid and deciding not to participate. Arizona State’s athletic director Clyde Smith complained to Walter Byrnes that “approximately 10 students who accepted their scholarships to compete in our program…have decided not to participate.” Smith added, “I think it is morally wrong. Regardless of what anyone says, this is a contract and it is a two-way street.” The NCAA when it came to workers’ compensation were virtually unanimous in their position that scholarships were gifts awarded with no obligation whatsoever to participate. When athletes took that notion seriously, however, those same officials had no problem rediscovering the contractual nature of such relationships.

At the 1967 NCAA convention, two pieces of legislation were proposed that would allow universities to cancel scholarships of athletes who in the colleges’ eyes were not living up to their end of the scholarship agreement. The first proposal was to amend their constitution so it would allow reduction or cancellation of a scholarship during the period of its reward if the recipient, “fraudulently misrepresents any information on his application, letter of intent, or tender, or ….engages in serious misconduct warranting substantial disciplinary action.” This proposal that passed 214-13, allowed a coach to refer an athlete who engaged in such action to appropriate authorities on campus for disciplinary action leading to loss of a scholarship. According to the new legislation, if a scholarship athlete made only token appearances at practice or did not show up at all, such action would be considered a fraudulent misrepresentation of information on the student’s admissions application, letter of intent, or tender would constitute grounds for immediate termination of financial aid. Thus being 100% contradictory to the NCAA’s stance of a scholarship not being contingent upon athletic performance. This prime example illustrates the ongoing and rampant monopoly that is the NCAA. Present day still holds several lawsuits brought on by former players seeking to earn revenue back that the NCAA gained and continues to gain from using their image, jersey and name to promote their product. Allowing this continued practice is an injustice to every major student athlete who struggles with juggling school work, practice, and a part time job. It may be time for the NCAA to acknowledge its athletes are in fact employees, and give them what is most certainly their due.