Mention “Amateur Status” and Most Fans Get All Wiggy

Let’s get real.  If you’ve read Dan Ariely’s books, you know he’s done some pretty good “experiments’ which tend to empirically demonstrate that thoughts of sex will entirely skew the rational thinking process in any American male. (As if this requires empirical data, with all due respect to Ariely.)

I am going to postulate here, however, that it is not only thoughts of sex which entirely skew the rational process in the American male: it is also any mention of the putatively sacrosanct nature of “amateur” status amongst Division I athletes — I mean, “Student-Athletes,” to use the name-tag insisted on by the NCAA since the 1950s.

It’s odd, but there’s a huge chunk of people out there who really believe all that “amateur status” whooey.  Maybe they their amateur-obsessed minds turn reflexively to “Glee Clubs”, “Alma maters”, Homecoming, final exams — whatever.  Or maybe they really believe that silly undergrads pimping for ESPN by zany poking of index finger in the air when the camara descends on them — on cue — — just before sweeping to the minute-long commercial for “Outback” or “Progressive” or whatever — is somehow the expression of some tiny slice of genuine sentiment, amongst all the millions of dollars flowing through turnstiles, TV networks, Athletic Departments, and T-shirt shops. All this kind of woozy thinking – by 2010 — has almost no connection to reality.  None whatsoever. But as someone once said, most people believe their lives are ruled by reason, when they are, in fact, ruled by custom.  And there persists now — long after almost all principles of amateurism have fled from big time sports — the notion that these performers are really “amateur.”

Let’s first look at a ready standard: what the legal system requires. If one looks at the day-to-day activities of, say, the average U of M football player, one quickly concludes that his activity makes him an “Employee” — whatever the legal standard.  For Wage and Hour purposes: he is an employee, clearly, and if the Wage and Hour division had been handling the recent UM NCAA investigation, the UM Athletic Dept. would have been substantially fined for the most basic of (illegal) shortcomings: the failure to even maintain basic work activity records.  Brad Labadie would have been personally subject to sanction by Wage and Hour.

But the protections are broader than Wage and Hour.  These players are “Employees” for Workers Compensation purposes. They are “Employees” for IRS purposes. They are “Employees’ under the NLRB, which protects “meetings” amongst two or more such persons — whether unionized or not.

What is the point?:  The NCAA is a “cartel”, whose primary purpose is to “restrain trade.”  This has been recognized as far back as 1981. And the trade which they “restrain” is the commercial activity of its’ players, and their opportunity to earn money based upon their market value.

There is raised by all these developments a useful analogy to the recent upheaval on Wall Street, leading to the recession.  What many people now perceive is that this resulted from a fundamental shift in the very nature of the business conducted by the banks and investment houses. Formerly — for more than a century -those financial institutions served as a “utility” intermediary, by providing a badly needed service: bringing together the ‘buy”  and “sell” side of a transaction, giving business access to ready capital. But, over the last decade, Wall Street changed it’s stripe, abandoning that “Utility” function, and moving toward status as a “Casino”, in which those banks and investment houses began playing the risk themselves (often with the novel, risky and unregulated investment vehicles like CDOs), for pure profit.

Big Time College Sports have undergone a similar fundamental transformation, having once been “educational”, in the sense of satisfying the Greek ideal of promoting mind and body as part of a classical education, and have moved entirely toward “branded” maximization of profit.

The NCAA is doomed, and within 5 to 10 years — because the situation  has become so absurd, with all these “not-for-profit” universities enjoying millions of dollars of income off the labors of young “workers” – radical change will come. The system is already crumbling.  Pending is a lawsuit by Ed O’Bannon (former UCLA basketball star) and others seeking rightful payment for (huge) income the NCAA has and will received for use of the players’ likenesses on video games.  The lawsuit terrifies the NCAA because it calls into question, potentially, billions of dollars in income. Other lawsuits similarly call into question whether big time college athletes deserve statutory protections afforded to other employees.

It might be workers’ compensation statutes, applied to all these “worker” players who have concussions, which are “gradual” injuries under those statutes, and injuries which can reasonably be expected to have long-term and very deleterious effects upon the health of those affected.  Or it might be other statutes.  But the system is going to be forced to come to its’ senses.

And people like Nick Saban — a snake-oil seller in the living rooms of relatively uneducated and disadvantaged parents and athletes — will be forced to admit that the “bad guys” are not agents, but the very coaches who participate in a system to deprive athletically gifted “performers’ from reaping their just financial reward, entirely based on market value, from their “entertaining.”

Agents are an accepted part of almost any other commercial transaction; agents for high school kids looking at college “offers, or at NFL offers, should be encouraged.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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