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

Chapter 1: Antitrust and Distrust of the NCAA: The Current Legal Structure in College Sports

acknowledgments Although only one name appears on the cover of this book, numerous people helped to make its publication possible. When this project was in its infancy, academic lawyers Peter Goplerud, Raymond Yasser, and David Schultz read the prospectus and offered thoughtful suggestions for improving the manuscript. At Vermont Law School, my research assistants, Conor Brockett and Brian Jones, mastered the intricacies of micro‹che technology on my behalf, dutifully checked the accuracy of my case citations, and made sure those cases were still good law. Lawyer librarian Cynthia Lewis patiently answered my endless questions about how and where to locate a diverse array of research materials. My colleague Philip Meyer offered encouragement on numerous occasions, along with insights into academic publishing. When the manuscript was complete, my colleagues Gilbert Kujovich and Marc Mihaly provided helpful critiques during a presentation I gave to members of the law school faculty. My assistant, Tammie Johnson, put her formidable computer skills to work for me as I revised the manuscript for publication. At the University of Michigan Press, acquisitions editor Melody Herr believed in the book and shepherded it from proposal to published work expertly and expeditiously. I could not have asked for any more prompt or thoughtful consideration of my proposal than she and the respective reviewers provided. Finally, as always, my wife, Sherrie Greeley, supported this project wholeheartedly yet knew when I needed to put it aside to hike, ski, or paddle instead . I am deeply indebted to her for her wisdom and sense of perspective. contents Preface / xi chapter 1. Antitrust and Distrust of the NCAA: The Current Legal Structure in College Sports / 1 chapter 2. A Revolt of the “Haves”: The Road to NCAA v. Board of Regents / 25 chapter 3. Free-Market Football: The Supreme Court Decides NCAA v. Board of Regents / 49 chapter 4. Thursday Night Games and Millionaire Coaches: The Implications of NCAA v. Board of Regents / 73 chapter 5. Hunting the Shark: The Road to NCAA v. Tarkanian / 100 chapter 6. Taming the Shark: The Supreme Court Decides NCAA v. Tarkanian / 127 chapter 7. What Process Is Due? The Implications of NCAA v. Tarkanian / 151 chapter 8. Trust Replaces Antitrust: A New Legal Structure for College Sports / 178 Notes / 197 Bibliography / 237 Index / 245 preface The marriage of athletic commerce to higher education in the late nineteenth and early twentieth centuries has had mixed results for American colleges and universities. On the one hand, both individuals and institutions have achieved fame and fortune from big-time college sports. On the other hand, ‹nancial excess, academic fraud, and unsportsmanlike conduct by coaches and athletes, on and off the ‹eld, plagued college sports a century ago and continue to do so. During the past generation, critics of the college sports industry have assigned most of the blame for such behavior to college presidents and to the National Collegiate Athletic Association (NCAA), the principal governing body for college sports. Both entities deserve criticism for subordinating the educational missions of academic institutions to the twin goals of publicity and pro‹t. But this book does not revisit the history of college sports or that industry’s contemporary problems, because other books have addressed those topics thoroughly. Instead, this book explains how, in the 1980s, the United States Supreme Court made the marriage between athletic commerce and higher education even rockier than before. Two Supreme Court decisions, namely, NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), and NCAA v. Tarkanian, 488 U.S. 179 (1988), are the subject of this book. In both cases, the Court struggled to understand the legal implications of the incongruous union between bigtime sports and postsecondary education, then reached a decision that favored sports over education. In NCAA v. Regents, the Court held that the NCAA’s regulation of live telecasts of college football games was an unreasonable restraint of trade in violation of the Sherman Antitrust Act. The justices reasoned that college football should enjoy a free market in which colleges could negotiate directly with television networks to determine if, when, and how often their teams would appear on television and how much they would earn per appearance. In NCAA v. Tarkanian, the Court held that the NCAA was a private association, not a “state actor”; therefore, it was not obliged to provide...