The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports

Chapter 2: A Revolt of the “Haves”: The Road to NCAA v. Board of Regents

ployee(s) should have “appeal rights IF the NCAA accepts the sanction as its own.”102 Similarly, chapter 7 of this book recommends a model of due process at NCAA hearings that includes an opportunity for a booster or a college employee whom a college sought to sacri‹ce in return for leniency to present oral or written testimony during those hearings. An Act of Congress Taken together, NCAA v. Board of Regents and NCAA v. Tarkanian have aided and abetted an expensive entertainment enterprise that is prone to scandal and fails to protect the rights of its workers (coaches and athletes) adequately. The two decisions’ joint responsibility for the excessive demands placed on coaches and athletes and for the inadequate protections afforded them accounts for their joint emphasis in this book. To be sure, the cases presented markedly different legal issues (a claimed restraint of trade in Regents and an alleged denial of due process in Tarkanian), and no evidence indicates that their outcomes re›ect a desire by the Supreme Court to structure or restructure college sports in any particular way. On the contrary, the Court seems to have decided each case on its own merits, as evidenced by the closer vote in Tarkanian (5–4) than in Regents (7–2). Moreover, neither decision created the problem of excessive commercialism or insuf‹cient due process in college sports; the NCAA and its members bear that responsibility, with an assist from media companies regarding commercialism. Still, Regents and Tarkanian are problematic because they have made college sports more commercialized and less protective of coaches’ and athletes’ rights and hence less compatible with higher education today than was true a generation ago. In short, these two decisions have exacerbated preexisting maladies in college sports, making those maladies considerably more dif‹cult to treat and cure than they would otherwise be. Happily, the solution to the commercial excesses precipitated by NCAA v. Board of Regents is also the solution to the inadequate legal protections for coaches and athletes resulting from NCAA v. Tarkanian. Congress should enact legislation granting the NCAA a limited antitrust exemption for rules designed to serve educational ends and requiring it to provide legal protections commensurate with the high stakes that its enforcement proceedings have for accused parties. The concept of congressionally driven reform of college sports is not new. Indeed, former congressman and professional bas16 the supreme court and the ncaa ketball player Tom McMillen has long advocated granting the NCAA an antitrust exemption and requiring the Association to strengthen legal protections for persons accused of rules violations. Speaking in 2003 at the National Symposium on Athletic Reform sponsored by Tulane University, McMillen analogized college athletic reform to campaign ‹nance reform in politics. In both contexts, he observed, “it’s pretty hard to change the rules when the issues are so dif‹cult, the con›icts are so intractable, or the money is so great.”103 Thus, he concluded, “[my] view is that [such change] will probably have to be done externally.”104 In 1991, while a member of Congress from Maryland, McMillen tried to promote a fundamental change in the administration of college sports by introducing the Collegiate Athletic Reform Act in the House of Representatives .105 This proposal derived from McMillen’s view that the NCAA needed to be “a benevolent dictator of college sports”and that only Congress could “restore the NCAA to its pre-1984 power over TV contracts.”106 His bill would have given the NCAA an antitrust exemption for ‹ve years, enabling it to negotiate and approve all major television and radio contracts for college football and basketball during that time. It would also have empowered the Association to expel any member institution that attempted to make its own broadcasting arrangements.107 In return for receiving the antitrust exemption, the NCAA would have been required to adopt various reform measures, including establishing (1) a more powerful Board of Presidents to oversee the Association; (2) a more equitable plan for revenue distribution among colleges, namely, one that was less tied to a college’s athletic success; and (3) enhanced due process protections for persons accused of violating Association rules.108 If the NCAA failed to adopt the reform measures within one year after the new law’s enactment , the Collegiate Athletics Reform Act would have authorized the Internal Revenue Service (IRS) to begin taxing the revenues that the NCAA and its member institutions earn from sports, under the Unrelated Business Income Tax...