The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports by Brian L. Porto (review)

The NCAA was founded in 1906 as a result of the rampant violence, injuries, and deaths occurring in intercollegiate athletics, particularly football. Today the NCAA must regulate vice of a different kind: hypercommercialization, rules infractions, and an overall culture that values winning above all else. In The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports, Brian Porto, an attorney, an associate professor of law at Vermont Law School, and a former collegiate athlete, examines two U.S. Supreme Court cases that paved the way for college sports to become the unwieldy—and, at times, seemingly unmanageable—enterprise that it is today.

Recognizing that the amateur values of college sports have been seriously eroded in favor of commercialization and television contracts, Porto frames his argument for an “educational exemption” to antitrust laws around the landmark decisions in NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988). He provides an incredibly rich and thorough analysis of the cases, from the climate in college sports that precipitated such litigation to judicial procedural history and court testimony.

Although the connections are not always clear and at times tenuous, Porto attempts to link the antitrust case in Regents to the due process issue in Tarkanian. His intention is to argue that the desire to win at all costs (precipitated by the huge revenues now available after Regents) has increased academic fraud and lowered graduation rates among athletes and has made NCAA enforcement difficult and sometimes unfair—as institutions are quick to sacrifice athletes and employees (as in Tarkanian) in order to avoid stiffer sanctions.

Before Regents, the NCAA controlled how many times—and for how much money—college football teams could appear on television. Antitrust laws were enacted to protect consumers; the NCAA plan restricted the number of games fans could enjoy and failed to allow top-tier programs to benefit in the marketplace from their notoriety. The NCAA was fearful that too many televised games would dilute the “product” and reduce ticket sales, when actually, the proliferation of the game on television inevitably increased institutions’ fan base and ticket sales skyrocketed. Today, college football continues to be a huge vehicle by which universities can increase their donor base through their fan base (Toma, 2004).

Porto pinpoints the decision in Regents as the start of an “arms race” in terms of salaries, recruits, and conference realignments. More than 40 institutions changed conference affiliations in the 10 years following Regents. That problem continues today. In recent seasons, once-steady conferences such as the Big XII have been diluted by the lure for mega television contracts. While the NCAA had tried to keep exposure and revenue at parity among its member teams, Porto noted that Regents began a clear bifurcation of athletic conferences as “haves” and “have nots.” In his dissent, Justice Byron (“Whizzer”) White, himself a famed college and professional football player, predicted: “Permitting a small number of colleges, even popular ones, to have unlimited television appearances, would inevitably give them an insuperable advantage over all others and in the end defeat any efforts to maintain a system of athletic competition among amateurs who measure up to college scholastic requirements” (p. 81).

As a result of Regents, the professional and financial stakes are higher for coaches and players. Today 25 coaches earn more than $2 million, and student-athletes’ value in the professional ranks is often decided by their success and exposure in the college game. Because of this intensification, Porto then examines the decision in Tarkanian, in which the NCAA ordered UNLV to fire its then-head basketball coach or face stiffer sanctions for NCAA rules infractions. In that case, the Supreme Court ruled that the NCAA is a private association and not a “state actor” under...