Thursday, August 14, 2014

How Much Is It Worth to Be Above the Law?

-- Posted by Neil H. Buchanan

This morning, the editors of The New York Times published two editorials applauding the O'Bannon case, claiming that the outcome will prevent universities from "exploiting the very students they have always purported to protect," and applauding the demolition of "[t]he myth of the pure 'student-athlete.' ” Meanwhile, Verdict had already published my latest column, in which I take a very different view of the landscape of college sports.

In my column, I return to an argument that I first offered here on Dorf on Law last December, where I described why there is nothing inherently wrong with "unpaid labor" in the context of nonprofit organizations.  At a minimum, as I will describe at greater length in a future post/column, none of the identifiable problems with college sports would be solved by paying cash to players, whereas such payments would certainly make matters worse in a number of important ways.

In today's column, I argue that the public confusion over college sports is rooted in the simple difference between revenues and profits.  College football and men's basketball produce lots of revenues, so they are called "money-making" sports, conflating revenues with profits.  Once one has made that analytical error, the question then quickly becomes why "everyone is getting paid except the guys on the field," or similar sentiments.  It all sounds very noble, but the supposed benevolence is misplaced.  In the for-profit world of professional sports, a conflict between owners and players is a zero-sum game.  (The owners will maximize ticket prices and TV revenues, no matter the content of the labor agreement, so "the fans" are not part of that story.)  If the players don't take their millions, the money goes to the private benefit of the owners.  Whatever else one might say about the big-time college sports programs, there is a long distance between a university president and an NFL owner.

I will come back to those arguments again, as I noted above, but I want to go in a slightly different direction here.  In my column, I again remind readers that college players are, in fact, paid quite well, in the form of full-ride scholarships.  As I wrote in a Verdict column that accompanied that Dorf on Law post from last December, the graduation rates of big-time athletic programs are not only un-terrible, but they are actually somewhat impressive (especially compared to the cynical conventional wisdom).  Moreover, even people who do not graduate benefit measurably from having attended college.

But cynicism is most definitely the order of the day in these discussions, so people quickly responded that there is no education at all going on at these universities, as far as football and male basketball players go.  Anecdotes have a way of morphing into established facts, which are then used to support the idea that universities are simply providing free tuition to jocks without giving them a college-level education.  Or, the claim at least is that such a large fraction of the athletes are not receiving educations that only a dupe of the NCAA would continue to think that full-ride scholarships are true compensation for the work of playing professional-in-everything-but-name sports.

Let us, then, temporarily embrace the cynical view, imagining that the worst things we hear about college athletics are universal, and therefore that the free tuition that these players receive is worthless.  What is left?  As I argue again in today's column, there is something odd about imagining that the modern college athlete at a "money-making" program is not receiving unique benefits.  Living in athletic dorms, with free room and board, is hardly an inconsiderable perk.  Even if, as the cynics claim, all too many of the recruited athletes are unready for college-level school work (or, if ready, are discouraged from using their minds), and thus do nothing but play video games and party between practices and games, that is a pretty sweet way for a young guy to spend four years of his time.

Which is, of course, before we have said anything about the Big Man on Campus phenomenon.  These athletes are not merely set up in special dorms and told not to be bother to attend class.  (Again, I am stipulating arguendo the certainly-overstated cynical view of the story.)  They are the gods of the campus.  Everyone wants to know them, and everyone wants to do favors for them.  Their social lives are -- how to put this politely? -- notably more successful than the average college guy's social life.

At this point, however, why not be completely cynical?  In addition to the regular trickle of anecdotes about academic fraud in big-time programs, there is a companion narrative in which apparently large numbers of athletes get away with whatever they want to do, on and around campus.  One 1980's graduate of Penn State described to me what it was like to try to co-exist with the supposedly squeaky-clean Nittany Lions football program, with players bullying other students in dining halls and basically throwing their considerable weight around with impunity.  Unfortunately, news reports confirm that such misdeeds by college athletes frequently cross the line into criminal behavior.  Some of these crimes are prosecuted, but the cynical view is that this goes on all the time, and the players get away with almost all of it.

In the 1996 comedy movie "Kingpin," a professional bowler named Big Ern (played by Bill Murray) wins a million-dollar tournament.  He is asked how it feels to win, and he replies: "All l know is, l finally got enough money... that l can buy my way out of anything.  l can do anything l want when l get my money later.  And l won!  Finally, Big Ern is above the law!  lt's a great feeling."

But allowing people to be above the law is, of course, not at all funny.  Last month, The New York Times ran a searing front-page story about how a tiny liberal arts college grotesquely mishandled a case in which a student claimed that a football player had raped her.  The player and his accomplices were cleared after a mere 12 days of perfunctory investigation, and other students on campus apparently isolated and taunted the student who was raped.  What is perhaps most pathetic about the story is that the college in question competes in the lowest division of football, but the undefeated team is still treated like gods on campus -- so much so that students will unquestioningly support the players and blame the 18-year-old victim.

Of course, the much bigger sports-related rape case last year involved the eventual Heisman Trophy winner, who quarterbacked Florida State to a national championship.  According to reports, a rape complaint to local police against that player was suppressed even before he had emerged as a superstar.  A law enforcement official in Tallahassee reportedly advised the victim not to pursue the claim, because there was simply no way that things would turn out well for her in that football-mad town.

To be very clear, I am not saying that two wrongs make a right, such that it would be OK to exploit football players (wrong) because some football players commit crimes up to and including rape (very, very wrong).  I am saying that the lives of college athletes are different from others, in some ways that are worse (physical damage, for which they clearly deserve adequate care and insurance) and some ways that are better.  If we are going to traffic in generalizations and innuendos, however, then the idea that there are a bunch of poor, uneducated kids being cheated out of their college educations must share the spotlight with the idea that college athletes are a bunch of pampered, out-of-control bullies and criminals.  Neither stereotype is likely to be true in general, but the latter is as believable (and supported by many more real-life incidents) as the former.  We can say, "All college athletes are  fake students, but they also all live life outside of normal rules," or we can note that both of these popular suppositions are thankfully exaggerations.  Both problems should be more aggressively addressed.

There is a lot of money floating around college sports, and it is corrupting not just the colleges but pre-college athletes as well.  (See especially this story about the way the detestable Deion Sanders' arrogance and star status have induced the Texas state government to give him carte blanche in running a corrupt charter school for elite high school athletes.)  Some of that money is being used to somewhat overpay coaches, and to build needlessly lavish athletic facilities.  But an honest look at the picture does not support the idea that the athletes are receiving nothing for their efforts.  If we are going to redirect some of the money to other uses, it would be nice for it to actually fund the universities' educational activities.  In addition, however, there are plenty of good ways to improve the lives of athletes and other students that have nothing to do with cash salaries.

5 comments:

David Ricardo said...

Mr. Buchanan invents a straw man, and then proceeds to knock it down. The straw man in this case is compensation for ‘student athletes’. Mr. Buchanan announces that they are compensated by a very lucrative free four year college education (of course that is something that can be taken away immediately in the event of injury or something else). No one disputes this point, but that of course is not the point.

The point is that colleges have formed a classic cartel, they have conspired to set the terms of employment (and yes that is what big time college athletes are, employees) and have agreed that all involved will abide by those terms. They gone further, denying their ‘student athletes’ the basic rights that other people have. College athletes cannot control or make money off of their own image. If they get paid for signing autographs they are kicked out of the athletic program.

The point is not that the student athletes do not receive some compensation, maybe even very good compensation. The point is that they receive less compensation than they would receive were there not price fixing in place. And the idea that university major sports programs are part of the non-profit mission of those institutions is ludicrous. They are simply profit making entertainment operations operating under the school’s basic non-profit status. Major college football and basketball play no role in education. They are entertainment, plain and simple. If the tax code were correctly enforced their revenues from football and basketball would be UBTI.

One wonders what Mr. Buchanan would think if all of the law schools got together and as a group determined the compensation for law professors and that each school agreed to abide by that determination. And suppose that one of those rules was that law school faculty could not get paid for outside work, or list their affiliation with the school in any way shape or form in publications created for profit. And suppose that if Mr. Buchanan were to violate this rule he would lose his faculty position and furthermore every other law school in the nation agreed not to hire him. Is that okay?

Is there an exception in the Sherman Act and other anti-trust statutes for forming a cartel and fixing prices when that action is done by non-profits? No. And rob a bank and give the money to charity, you still go to jail.

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