I remember what a kick in the nuts it was to hear the news that Herschel was leaving for the USFL, but for some reason, I didn’t remember this particular development afterwards:
In 1983, I testified before Congress, along with former NFL commissioner Pete Rozelle and several prominent college football coaches to oppose a bill called “The Collegiate Student-Athlete Protection Act of 1983,” which was designed to encourage college student-athletes to complete their undergraduate education before becoming professional. The hearing was prompted by the signing of Heisman trophy winner Herschel Walker to a multi-million dollar contract by the USFL’s New Jersey Generals prior to completion of Walker’s college eligibility at Georgia. The bill was introduced to preclude the professionals from raiding the colleges of their most talented football players before they graduated. At the time, there was enormous fear of the potential upheaval that student-athletes abandoning college for the riches of professional football before completing their college football eligibility would cause within the business of college sports: a poaching of talent would make collegiate teams far less marketable.
The hearing sought to answer under what conditions could Walker, or any other student athlete, lose his amateur status and become professional. Senator Arlen Specter probed then-NCAA president John Toner, Joe Paterno and Bo Schembechler on how a young athlete could make such a decision without counsel of an attorney/agent, particularly since attorney/agent counsel was prohibited under NCAA rules. They not only failed to answer the question directly, but he interplay between them also suggested that they had had many prior discussions regarding amateur and professional eligibility.
Senator Specter further pressed them on the existence of the perceived “gentlemen’s agreement” between the NFL and the NCAA not to sign contracts with undergraduates until after the expiration of the athlete’s college eligibility. Such an agreement, if it existed, would be a violation of antitrust law. Amidst laughter in this public hearing, they expressed their disappointment in the USFL’s signing, but would not admit to having a group agreement. USFL commissioner Chet Simmons explained that the league only approved the signing for fear of an antitrust lawsuit filed by Walker’s lawyer and that the USFL was there in support of the bill since it would allow for a league rule to prevent such legal action. Rozelle testified that for the past 50 years, NFL rules honored the amateur athletes’ four years of college eligibility and would continue to do so in spite of a potential legal challenge. On the other side, NFL Players Association executive director Ed Garvey criticized the NFL for its disregard of the Haywood v. NBA decision in a similar case.
The author of the quoted piece was at one time the executive director of the NBA Players’ Association, so he’s certainly got some perspective on the matter. His suggestion on how to deal with the NCAA’s current struggle defending its amateurism protocols, which you can read in some detail, is for the colleges to enter into a partnership with their student-athletes – as he summarizes it, “a revenue-sharing business model and recognize a Trade Association representing the college athletes’ interests as partners”. Yes, if you think that makes too much sense for the NCAA membership to embrace without a struggle, you’re not wrong.
If that’s Plan B, at best, it’s not hard to guess what Plan A is shaping up to look like.
As pressure from litigation and possible congressional intervention mounts, the idea of handing some control of college sports to the federal government in return for protection from antitrust law becomes more of a possibility.
“It’s not my preferred path,” Notre Dame athletic director Jack Swarbrick said. “I think it is increasingly an inevitable path.”
Swarbrick was part of a panel of legal and college sports experts who tackled the prospect of an antitrust exemption for the NCAA early this week at a meeting of the Knight Commission on Intercollegiate Athletics in Washington.
The NCAA has no official position on whether to pursue an antitrust exemption.
“It’s certainly the case that some people in the membership raise this as a question: Is this an avenue that needs to be pursued for college sports?” NCAA chief legal counsel Donald Remy said.
“Some people” – Donald’s not saying who, exactly, but he wants you to know they’re out there. Like we didn’t already know that, dude.
The problem for Donald’s folks is that antitrust law isn’t about academics, which is the noble cover in which they’re going to try to cloak themselves. It’s about economics, which is what we all know this move is really about.
“The problem with it is it implies equivalence between education and athletics. That equivalence should not exists,” Katz said.
Katz does not believe antitrust exemption is a realistic solution for college sports as is.
“The idea of going to congress and trying to get an antitrust exemption for what is a huge commercial enterprise I think is a fool’s errand,” he said. “The U.S. Supreme Court has characterized the NCAA as a cartel. Cartels don’t get antitrust exemptions. Educational institutions do.”
Not that their tune has changed much since Herschel left Athens.
The NCAA, its coaches, the NFL and the USFL were there seeking antitrust protection because a new league had broken with tradition and an unspoken honor code, but mainly it highlighted the difference in the intent of the senators and their desire for the student-athlete to get an education while the NFL, NCAA and USFL focused entirely on the question of eligibility. Thankfully the bill failed, but the power of the NCAA and its political lobby was clear, as was the collaboration, which looks more like collusion, between the NCAA and the professional leagues.
Cartels don’t change their spots. Although sometimes they do look for legal protection.