NCAA Redux

     There is an adage in the legal world that difficult cases make bad law—that is, that it is foolish to draw general principles from exceptional circumstances. A number of readers have argued that this is just what I’ve done with the Bomar and McElrathbey examples. After all, most college athletes don’t cheat, and most college athletes aren’t the legal guardians of their little brothers. So why toss out a system that works perfectly well in most cases because of its failures on the margin?

     I think that’s a fair criticism. So let me try again. I don’t agree that Bomar and McElrathbey really are “difficult cases.” Although the particular circumstances in which they ran afoul of the NCAA are unusual, the reason for their predicament is not. In fact, I think, both cases point to a problem that runs through the NCAA’s treatment of just about everyone: the idea that a regulatory agency can have jurisdiction over the entire life of athlete.

     I made this point before, briefly. But it’s worth restating in more detail. McElrathbey is an athlete. He is also a student, a brother and, now the legal guardian of his younger brother. The NCAA’s formal mandate is to govern students in their capacity as athletes. But here, in forbidding McElrathbey from accepting outside donations to help him take care of his little brother, the NCAA has extended its jurisdiction to govern McElrathbey in his capacity as a brother and legal guardian.

     I think that’s outrageous. We all accept the fact that if we attend a high school or a college, that institution can impose a certain behavioral code on us when we are attending that school. But a high school that forbids its students to wear miniskirts or jeans or torn t-shirts cannot extend those restrictions to the way students dress when they aren’t at school. Authority is necessarily tempered by the question of jurisdiction.

     Bomar’s case raises the same issue. His ability as a football player made him a celebrity in Norman Oklahoma. Because of that celebrity, the car dealership that employed him was willing to pay him an extra several thousand dollars (the $18,000 figure initially quoted in some news reports, by the way, is wrong). Was that sleazy? Of course it was. Was it an underhanded way for a booster to get money to a star player? Totally. But working at a car dealership is not playing football, and football the only thing over which the NCAA rightfully has jurisdiction. Sure Bomar got paid for doing little or nothing. But the hallways of Oklahoma—like the hallways of every college in this country—are filled with students who for one reason or another got paid a lot of money on their summer vacation to do little or nothing. (I would include myself in this. In the summer of my junior year the Government of Ontario paid me to do almost nothing at a theater group called Toronto Workshop Productions. Let just say a good time was had by all).

     The NCAA would respond that they have to police Bomar and McElrathbey in all of their various roles and incarnations because they are defending an all inclusive ethic—amateurism. To be an amateur is like being a virgin. It’s not situational. It’s absolute. McElrathbey, the NCAA would say, has to understand that the requirements of amateurism, in his instance, are in unfortunate but unavoidable conflict with the freedom to accept outside financial assistance.

     Fine. In theory, I can buy that argument.

     But wait. Surely if you want to defend an absolute ethic, you have to defend it absolutely. That’s the way it was in the late 19th century, when the principles of amateur sport were first codified. Back then, the games were free. The coaches were volunteers, and certainly no one was pulling down millions of dollars from Bowl Game appearances. The amateur ideal applied to everyone.

      Now? It only applies to athletes. If I’m Oklahoma, I’m allowed by the NCAA to trade on the celebrity created by my football prowess and sign a $500,000 endorsement deal with Nike. But if I’m Oklahoma’s quarterback, I’m not allowed to trade on the celebrity created by my football prowess and make a few extra dollars in my part-time job. If I’m Clemson University, I can pay my men’s football coach $1.1 million a year in salary to coach an “amateur” athletic team. But if my cornerback wants to accept gifts from the public to help raise his little brother, he can’t. Why? Because he happens to play on that “amateur” football team. I repeat what I wrote in that last post. I cannot, for the life of me, make sense of that position.

     I’m not advocating the end of amateurism. I think the NCAA killed amateurism long ago, when it decided that this grand noble “ethic” applied only to athletes, and not the coaches and athletic departments and schools they play for.

Comments

[Ben]

I agree 100% with you.

The question, which you addressed in your last blog posting, is how to affect the change. Certainly those in power are not going to want the system changed - they have a monopoly, and are raking in the dough. The only way change can be made is if the fans vote with their wallets - and the nature of a monopoly like the NCAA has is that it's unlikely the fans do that. People aren't going to stop attending or watching NCAA games simply because their policies are horrendous. It would take far more than that.

So at this point, I don't see anything changing for a long while, no matter how much it needs it.

[pauldwaite]

@Ben: I think it's "how to effect the change". Sorry if I've misunderstood the sense you're talking in.

[Jeff Ruley]

I love your writing Mr. Gladwell. I see a lot of comments arguing against your NCAA thoughts or supporting them. I personally agree, as it is something I've thought about for a while, that D1 universities continue to reap the benefits of their student athletes. Yes, they get a free education, room and board, etc. in exchange, but I think it goes beyond that. If the NCAA is all about student athletes then why are there so many stories about their athletes not attending class, yet passing. I had some simple classes when I was in school also, but I still had to go.
I agree that the NCAA is overdue with looking at its policies and coming up with a new system.
As for those that don't agree, I think that is what is great about forums like this, to intelligently discuss something and I'm grateful for you sparking the conversation. At least someone wants to actually have it. I just hope the NCAA decides to join in.

[Trevor C Williamson]

David, meet Goliath. I'm in absolute agreement with both Malcolm and Ben and I find it to be sheer madness that the athletes are the only ones in that billion dollar business that don't partake in the spoils. Well, let me change that, I guess you can call their 1 in a 1,000,000 chance of going on to professional sports a benefit that they are indirectly afforded by being amateur athletes.

The question is, of course, how can it be changed? Is it akin to a law of gravity at this point?

What is interesting is that those in positions of power (who may have the cojones to make legislative change, if that is what is needed) are all alumni of some stripe or another and would never lift a finger to do so.

It is definitely a conundrum but probably only of interest to a small subset of the population and, unless it eventually splashes across page one (above the fold), will never garner the attention it deserves.

That is sad for those fine young men and women irreparably harmed by the system as it stands now.

[dane]

maybe some actions are due the athelets themselves,is what I'm thinking.Mount some kind of protest thing,to divert attention,which is long overdue to the core of this issue.Expose the ridiculousness of the status quo and juxtapose it with the alternative more rationally conceived.See what kind of change will flow...

[Christopher Horn]

This one is a bit tricky. Malcolm's point about the "injustice" of the McElrathbey case is well-taken. Per Jeff Ruley's observation about using this forum to press for change, it strikes me that the injustice of not allowing McElrathbey to make a bit of side money is VASTLY outweighed by the injustice of not preparing men like him to take advantage of their situation in life.

First, a bit of background: I am a proud employee of a Fortune 500 firm, which has several senior leaders that were successful, even prominent, college or professional athletes. I don't have stats on it, but I'd guess the "successful athlete" is among the most predictive behavioral characteristics of leaders at my company.

And we're not alone by any means. I couldn't find an article in a casual search, although Google did cough up this piece on why athletes make good leaders - making the case if not exactly providing the data.

http://www.drugfreesport.com/choices/decision/index.html

So what does this have to do with McElrathbey? I don't know the specifics of his situation, but if he is a typical college athlete, the "college" side of his existence is coddled and shuffled along, while the "athlete" side is the source of serious hard work.

Interestingly, Malcolm gave a fabulous address a couple of months ago in which he argued that our fascination with childhood genius is strange in that such geniuses (genii?) tend to be mimics, while adult success is the result of good old fashioned hard work.

Malcolm's talk, of course, was right on.

So back to McElrathbey. He apparently has the enormous built-in career advantage of being an elite college athlete. "All" he has to do is work his behind off in his studies to get a degree worthy of his physical skills, and the world is his for the taking (as Malcolm roughly suggested in that talk several months ago).

Now, McElrathbey will likely never make the NFL, and the impact of the lost donations today will be relatively small over the course of a lifetime.

The impact of not taking advantage of the runway to professional achievement college athletics CAN provide is huge.

Some might say I am digressing to make a side point, but let's be clear:

to the extent we treat our college athletes as paid professionals, any remaining pretense of their being students is lost.

For 95%+ of student athletes, the pot of gold at the end of the rainbow is reached through studies, not on the athletic field.

(give a man a fish, he eats for a day...)

[Stefano]

Roughly speaking I think it's just a problem of money. Bomar works in the care sales shop not because he's a good seller but because he's a good player of a football team member of NCAA. McElrathbey receives money because of his difficult familiar situation. In the first case NCAA has some "right" to say "hey Bomar, we want a part of your revenue, because you're getting money because your ability but also because you play in a team that is our member. Without us you'll be mostly nothing". In the second case NCAA cannot say the same. In fact the McElrathbey's example is a case where some private citizen wants to give X amount of money to another private citizen for some reason NOT related with the "amateur football player" condition of the receiver, but instead it's related with a FAMILIAR feature of the receiver. So NCAA has "no rights" in this case.
So here you have a rule: “amateur” football player can receive money form any kind of extra activity, BUT NCAA must receive an x% of the amount for all those extra activities that are motivated by the celebrity of the player. Dear Malcolm, money not ethics is the way to solve problems!

[j-lon]

Although I have mixed feelings about this, I think that real reason the NCAA defends this issue so hard goes beyond athletics. Really the entire labor structure of our college/university system rests on underpaying large portions of the college/university labor force in the name of providing them with an "educational training" experience.

It isn't just football and basketball players, it's post-docs, T.A.s, P.A.s, etc. who are also grossly underpaid by market standards

At the point you acknowledge that many athletes are workers first and students second, it starts you down the slippery slope to looking at all the other folks in the system who are also giving a lot more labor value than they are getting in pay. And god knows the keeps of the keys don't want that.

The disconnect is just greater in the context of major college sports, because the spoils are so great for the winners in that tournament who are able to turn pro.

I guess the other issue, which I do have some sympathy for, is the issue of gambling, point shaving, etc. Perhaps the market would take of this if there wasn't regulation of player compensation.

On the other hand, the NCAA regs aren't really that different than the salary cap in pro football and basketball.

At this point, it seems like most people agree that these caps cut down on the gap between the haves and the have nots, make for more interesting competition, and therefore a better product.

So it seems like even if you wanted to reform the system somewhat, some kind of regulation would be a good idea.

[Farhan]

Surely NCAA D1 student athletes have a lot in common with Olympic athletes. Wouldn't a possible solution be a kind of hybrid earning amateur athlete status? Where you could put a cap on how much they can earn but still give them means to enjoy some of the perks of celebrity.

[Jason L.]

In thinking about this, the other thing that bothers me, besides the NCAA being tyrannical overlords, is the fact that the student athletes don't have a real voice. Each one is left to do the fighting privately, through lawyers and maybe the media if you're big enough. They have no collective voice to change the situation.

I do have a concern in relation to the money involved however. The results of the university athletic departments raking in tons of money can lead to the funding of the other smaller sports and women's teams that may not exist without it. So a concern over this dough for me is that you could lose the rowing team and the field hockey team at some of these universities.

[Carl Witthoft]

"God Bless you, Mr. Rosewater." At least I think that's the book in which Vonnegut envisions college football teams paying (and trading) players. Not that your blogs are any less valid for being nonoriginal.
My opinion is that Div 1 colleges should do the following.
1) Pay the players a fair salary.
2) Give the players a 4-year academic scholarship; but the academic years are not to coincide with their athletic years. That is: an athlete will play for 4 (or 5, or whatever) years for the college, team, taking no courses. Then at some later date he will enter as a student and be subject to standard academic rules.

[Adam]

While it is clearly a mistake to make laws based on exceptional circumstances, a law that works under extreme circumstances is clearly a good law. (This comment is more about the first paragraph of the post rather than the whole NCAA arguement, although I firmly agree with Mr. Gladwell.)

In the sciences, one of the best ways of testing a mathematical model of a system is by looking at the boundary conditions. To derive these models, the normal behavior of the system is described mathematically, but to determine if the model is effective and accurate, extreme conditions are plugged in. If the model is still consistent with observations, it is good, but if the model is inconsistent at boundary values (extreme conditions), the model is re-evaluated.

For example, you create a model that describes a phenomena that goes to a finite value (say, the number 7) at infinately long times. To test the model, plug in extremely long times (much longer than are practically applicable under most circumstances) and if the model gives the number 7, it is a good descriptor or the system - if it doesn't back to the drawing board.

This concept applies to laws, and systems like the NCAA as well. You don't make the laws based on extreme circumstances, but testing them under extreme circumstances is the best way to decide if they are "good". Clearly, the NCAA fails the boundary conditions test.

[Gary]

I absolutely agree with j-lon. A lot of the allure of college athletics would be lost if the athlete was making large sums of money. I don't feel an NCAA athlete should be able to get rich while playing a college sport but it would be more than reasonable to give them enough money to live comfortably while in school. The NCAA shouldn't just police the athletes, they should look out for their best interest and take care of the product they are making millions off of.

[lmnop]

I think some of Malcolm's post(s) miss a fundamental point. Should colleges be in the business of sports? Or is society better off giving academic scholarships to people who will become doctors, engineers, and mathemeticians?

The reality, of course, is that college sports is unlikely to "go away". At the same time there is a tension between trying to insure some parity ( check BASKETBALL for parity - there is a LOT more than you see in football), and also allowing student atheletes to earn a few bucks. Probably the best approach would be to simply allow a stipend of $x per year -- say $5,000 or $10,000.

If you want to really think in depth about this issue - there is a fantastic book that has already covered this ground -- SPORTS IN AMERICA by James A Michener was written in the 70's and covers the issue in all the knowledge and detail you would expect from one of the greatest American writers.

[Leveraged Sellout]

"But a high school that forbids its students to wear miniskirts or jeans or torn t-shirts cannot extend those restrictions to the way students dress when they aren’t at school."

Actually Malcolm, Andover officially forbade me from EVER wearing a shirt without a collar.

[Gladwell Neophite]

These two very high profile cases bring to mind another situation relating to Notre Dame's standout defensive back Tom Zbikowski and his recent professional boxing debut at Madison Square Garden where he was paid $25,000 for less than one round of boxing (i believe). How is that possible within the NCAA's guidelines?

[abb]

Zbikowski was allowed to box professionally because he is not a college boxer. Apparently the NCAA distinguishes between making money from sport played in college (football), and making money as a professional athlete in another sport (boxing). Ridiculous.

[Tommy]

abb is right on that one. I know of several college football and basketball players who have been drafted by baseball teams and play in the minor leagues while still participating in college athletics.

Ricky Williams, Kenny Lofton, Cedric Benson, and others come to mind.

[Chris R]

Really, our focus on "college" athletics is an aberration world-wide. The idea that a 16-year old would go professional in soccer or tennis or whatever isn't an aberration elsewhere, but certainly is here.

Why does that continue here?

1) You're correct about the NCAA as a cartel in order to defend the idea of college athletics, as explotative, outdated and quaint as it may be.

2) Consumers are used to the "brand" of college athletics (supporting Kansas University, Texas, March Madness, etc...) have no problem with TU-North Texas or not paying athletes -- they're willing to support the idiotic concept of "student-athletes" and "Coach K really cares about his student-athletes" b/c it has been drilled in their skull by commentators who often were reared by that very brand (the Vitales and Phelps' of the world).

3) Professional athletics love college sports. It is a minor league that provides a great deal of exposure to players who are about to become members of their league -- and also trains their players for free. It is also a minor league that doesn't directly compete with their product for labor or exposure. And, best of all, they don't have to pay a red cent for the maintenance of the league or worry about its financial stability.

To be honest, I find the theory of college athletics at this point a bit silly. It clearly isn't tied to academics at this point but more to television contracts, inertia in consumer behavior the like. And many of the players don't get adequately compensated for bringing exploits and money to the institution.

PS: Most universities claim that their athletic programs don't make money. If that's true, they are the first cartel that do not compensate their labor force to ever lose money in the history of mankind. If that's true, shouldn't every AD in the country be fired?

[Heath G]

I personally would like to see the NCAA banished. They are a hypocritical organization caring very little for "student" athletes. I wish AAU programs and local (regional) club programs had more influence on big time athletics so it would be a truer reflection of a community/state to produce better people/athletes. Right now it is a very, very, very dirty business getting top recruits to your school. Right now it's not a battle of the haves and have nots. It's a battle of the haves and have mores and who ultimately loses is the student/athlete b/c he receives no benefit other than a "college education" which he/she may or may not achieve depending on their status with the team or coach or university in question. Coming from a former (low rent) college athlete it sickens me that some people have the same degree I have when they attended one half the classes I did and their academic work was 1/4 as good. Keep in mind this was not a huge university that pulled these things, but a small private christian school.

[Travis]

Another point that Malcolm didn't mention is that NCAA football players CAN be paid to play sports. Just as long as they don't take endorsement money. Two players for Notre Dame, Jeff Smaragia(sp) and another player, both receive money from other pro sports. One is a pitcher for one of the Cubs minor league teams and another is a professional heavyweight boxer.

The question is why will the NCAA let them participate in these sports for financial gain but not in the sport that they are best at?

[Steve M]

Mr. Gladwell: There is no disagreeing with your assessment that the NCAA is, at times, inhumane in the application of its various laws, and that the huge amounts of money being made by coaches and administrators do not fall in line with the principles of amateurism.

However, in advocating that the players are being unfairly treated by essentially playing for free, you leave out one very major point: The players are receiving one HUGE benefit in return for their services: a free college education. A college diploma (not that they all attain one) is one of the most valuable assets in our entire society, and these athletes are being given the chance to pursue one free of cost, based not on their acacemic merit or need but on their athletic abilities. In many cases, these students would never even be admitted to a major university if not for their football ability. I'm not saying that makes everything right, but let's not paint the players out to be purely poor, indentured servants, because they are being compensated.

[Alex]

I've been going to UCLA for four years and I think I am in a good position to see what the athletic department does for its athletes. In no way, shape, or form do I feel sorry for these guys because they aren't getting a share of the money. These guys get the royal treatment, even the non scholarship guys on the low-profile teams like golf or water polo. I can't imagine what its like at a place that loves its athletes because UCLA is actually quite indifferent.

I think the focus should be taken away from paying these guys and put on trying to make them students. Peer environment has a huge impact on how these guys act and unfortunately the football team is a peer environment that is not conducive to schoolwork. It's my feeling that the NCAA really needs to get on making these schools put out well rounded kids (because being both a good student and an athlete makes you far superior to almost anyone, in my mind at least).

People are right when they say the diploma is the big payoff for the guys that don't go pro. But campuses are failing these guys because they're not making sure they get the student part down. I see the real problem in letting these guys get a fake education. It's disrespectful to everyone, including the athletes.

In closing, keep the NCAA; we don't need USC, Notre Dame and all the other football schools becoming like the Yankees or Real Madrid. The situation would be much more legit if they did a better job making these guys students (and having the NBA and NFL require diplomas. That would be grand...)

[KFairfield]

"PS: Most universities claim that their athletic programs don't make money. If that's true, they are the first cartel that do not compensate their labor force to ever lose money in the history of mankind. If that's true, shouldn't every AD in the country be fired?"

Posted by: Chris R | September 06, 2006 at 04:01 PM

I like this quote, even though I have to disagree. The cost of running an athletic department, with the great majority of sports generating little to no income, is huge. Those schools with big-time basketball or football programs SHOULD be able to subsidize everything (Indiana University being an example of one that, at least during the McNeely years, did not do a good job). Beyond that, unless your non-revenue generating sports have great alumni support or endowments (i.e. Oklahoma State golf), the costs of supporting the programs really are a money-losing operation.

As far as McElrathbey...this is a tough call. On one hand, if he had come to Clemson on an academic scholarship, would alumni even know his name (or situation)? Would there even be offers of donations to support him and his brother? Probably not. On the other hand, would he have the freedom, with no NCAA restrictions, to secure additional means of support for him and his brother? Absolutely.

[millermick]

"But a high school that forbids its students to wear miniskirts or jeans or torn t-shirts cannot extend those restrictions to the way students dress when they aren’t at school."

I beg to differ -- many private high schools have codes that extend to students behavior outside of the classrom and that can include dress. They usually fall under a "conduct unbecoming of a student of institution X".