It has been a tumultuous year in college sports.  One commentator, the highly respected Professor Warren Zola of the Carroll School of Management at Boston College, has penned an excellent article in the Huffington Post describing some of the recent developments.  The article is reprinted below with the permission of Professor Zola.

The experienced attorneys of the Collegiate & Professional Sports Industry Group at Jackson Lewis LLP stand ready to assist academic institutions and others involved in the changing landscape of collegiate athletics.  With a working knowledge of NCAA by-laws and an understanding of the interplay between college and professional sports, Jackson Lewis is well-positioned to address the issues raised by Professor Zola and others that may arise in the future.


The Year in Review: College Sports Reform Reaches the Tipping Point

by Warren K. Zola
Assistant Dean for Graduate Programs
Carroll School of Management at Boston College


On college campuses across the country the academic year is winding down — making it an opportune time to review the changing landscape of college athletics. The nature, business, and management of college sports has been debated and criticized these past 12 months more so than any other period in recent history, and the NCAA is facing scrutiny on whether it has deviated too far from its stated mission: to ensure that college athletics is “an integral part of higher education with a focus on the development of our student-athletes.”

For the first time, critique of college athletics has migrated from sports pages to mainstream media. Pulitzer Prize-winning author Taylor Branch published his essay “The Shame of College Sports” in The Atlantic Monthly last fall, illuminating the business of college athletics in ways never seen before. Frank Deford, an Emmy award winner and six-time U.S. Sportswriter of the Year called the piece “the most important article ever written about college sports.” The onslaught of media coverage and vilification of the NCAA has led us to question the fundamental role of college athletics within higher education.

This past October, Congress hosted a forum titled “Hypocrisy or Hype? The Impacts of Back-Room Deals, Payoffs, and Scandals in American Collegiate Student Athletics,” taking a closer look at the role of the NCAA and the rights of student-athletes. During these discussions, it became increasingly clear that as institutions chase revenue in this arena, they do so by often disregarding the interests of their student-athletes. The question was posed: Do sports still fulfill the critical role they should in the development and education of our students within the existing framework of intercollegiate athletics?

The publicity of NCAA rules violations at high-profile universities like USC, UNC, and Miami added a new layer to the growing debate over the rule of college athletics. Penn State and Syracuse redefined “lack of institutional control” when their coaches brought unwanted attention for alleged abhorrent and criminal activity. These fine institutions witnessed their wonderful academic initiatives and loyal alumni base marginalized and stained by this departure from their core values and perceived loss of direction. The concept of accountability prominently entered our discourse in discussions regarding college athletics.

In response to the growing call for meaningful change within college athletics, NCAA President Mark Emmert and the Division I Board of Directors voiced support for a major review and update to the 426 pages of the 2011-12 NCAA Division I Manual. They recommended reform in the shape of two –r adical for the NCAA — proposals: 1) the opportunity for schools to offer an additional $ 2,000 to “full cost-of-attendance” scholarship offers; and 2) the right for schools to award multi-year, as opposed to one year, scholarships. Showing their true colors, and reminding the general public that the NCAA does not enact the regulations but that their member schools do, colleges across the country voted to reject the $2,000 stipend proposal and narrowly voted to allow multi-year scholarships — a small win for the rights of student-athletes. Their primary rationale for rejecting the $2,000 stipend? It was too costly to provide this minimal compensation to student-athletes.

One well-intentioned NCAA initiative — reform legislation targeting poor academic performance by student-athletes that bans a team’s participation in NCAA post-season competition if they don’t meet heightened graduation rate requirements — has resulted in very real consequences for many. Most notably, UConn’s men’s basketball program, among others, is banned from post-season play for the upcoming 2012-13 season due to historically low graduation rates. This raises another issue: Should current student-athletes suffer an institutional punishment for misconduct from prior years, often by coaches who have left for other schools?

Controversies surrounding student-athlete transfers, previously swept under the rug, became a notable issue recently. Several student-athletes who wished to transfer to another academic institution were effectively held hostage by their college coaches. Kansas, Maryland, and most prominently St. Joseph’s, enforced unethical rules that clearly violate the rights of student-athletes and the mission of college athletics. With unabashed arrogance, college coaches determined where and when a student-athlete could transfer to another school. As a result, the role of National Letters of Intent (NLIs) has come under scrutiny.

Briefly, NLIs are binding agreements between a prospective student-athlete and a college institution that govern the relationship and bind a student-athlete to a particular school under NCAA rules. In many ways, NLIs are drafted entirely to protect institutions, while providing no bargaining power to student-athletes. The result is that while coaches are free to enjoy free jump from school to school at will, a student-athlete needs permission from their school’s athletic department to have even a conversation with another school.

The never-ending search for revenue contributed to the degradation of college athletics as institutions pursued conference realignment. It is clear that schools will trample over themselves and any alliances they have forged over decades of partnerships to join “power conferences.” The result? Each of the six power conferences (ACC, Big 12, Big East, Big 10, Pac 12, and SEC) will experience membership change by 2013. There are active lawsuits over departure dates but make no mistake — schools are chasing television dollars like never before. And neither the student-athletes nor the NCAA has any say in this process.

Finally, the manner in which schools educate those student-athletes who have the opportunity to pursue a career in professional athletics has come under fire as well. In an ever-evolving regulatory environment, restrictions from professional leagues, their unions, and the NCAA alter draft eligibility rules and evaluation periods for hundreds of student-athletes each year. Students make ill-informed decision by either leaving school prematurely or in selecting their professional representation because the NCAA continues to limit or completely restrict ways that potential professional athletes may obtain unbiased counsel. Furthermore, the number of schools that provide serious support and counseling to their student-athletes is rare indeed.

What does the coming year hold in store for this multi-billion dollar industry? There is a growing and palpable movement to defend and enhance the rights of student-athletes. Legal precedents over the past several decades firmly established that student-athletes are not employees and thus do not have legal rights under employment law. However, advocacy groups are becoming more vocal and powerful in this industry — led by the National College Players Association (NCPA). The NCPA serves as an “independent voice for college athletes across the nation” and is gaining substantial press and support as the public continues to question the growing business of college sports and the departure from the best interests of the student-athletes.

One lawsuit on the horizon with potentially staggering consequences to the NCAA as we know it is O’Bannon v. NCAA. This suit, filed in July 2009 by former UCLA basketball star Ed O’Bannon, and subsequently joined by Bill Russell and Oscar Robinson among others, was brought on behalf of former college athletes against the NCAA and the Collegiate Licensing Company (CLC). The suit squarely addresses the issue of the NCAA using the “likeness” of athletes — without compensation — during their time as a student-athlete and post-graduation. If, as the plaintiffs contend, the NCAA is violating antitrust law by restraining trade under the Sherman Act as well as depriving them of their “right of privacy,” the very foundation of intercollegiate athletics and amateurism will be irrevocably changed.

We are at what Malcolm Gladwell described as the “tipping point” in the history of college athletics. The pendulum has swung as the general public recognizes the flaws in our current college sports regulatory environment and the restraints on the best interests of the student-athletes that higher education claims to hold in such high regard. We have had over a century of experience to draw from since the NCAA’s 1906 formation, and changes over the past several decades have afforded the industry time for reflection. Now, in 2012, it is time for reasoned and meaningful action. Let’s hope that when we look back at the 2012-13 academic year,real progress has been made toward protecting the interests of our students and their role within higher education.

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