The Drake Group Doubts the Judge Wilken Decision Will Solve the College Athlete Compensation Issue

PRESS RELEASE – FEBRUARY 28, 2019

For immediate release
Contact:
Fritz Polite, President
The Drake Group
(407) 758-0811
fpolite@su.edu
TheDrakeGroup.org


The Drake Group Doubts the Judge Wilken Decision Will Solve the College Athlete Compensation Issue

NEW HAVEN, CONN. – Today The Drake Group released a new position paper, a “Critical Analysis of Proposed Models of College Athlete Compensation“, questioning whether the pending decision of Judge Wilken in the National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust litigation will solve the college athlete compensation question. The Drake Group believes that the current pressure on higher education institutions to pay college athletes beyond the full cost of education has been created by root failures of the National Collegiate Athletic Association (NCAA) to:

  • articulate and implement an educational sport system that allows college athletes to be treated like non-athlete students with regard to employment other than employment as professional athletes and other economic opportunities outside the institution, including the right to exploit their own names, images and likenesses unrelated to those of their academic institutions;
  • mandate that the use of the considerable revenues from the commercial success of college sports first be used to provide the 480,000 college athletes attending member institutions with adequate health, safety, and insurance protection rather than lavish and unnecessary athletics facilities and excessive compensation of coaches and administrators;
  • prohibit the admission of college athletes through waiver of normal academic admissions standards by any member institution or that such waivers be proportional to athlete representation in the student body which would pressure professional football and basketball leagues to maintain their own viable minor league systems as compensation alternatives while, more importantly, removing the primary causative mechanism underlying fraudulent academic practices to keep these students eligible; and
  • further limit the amount of time athletes spend in sports-related activities, eliminate transfer rule penalties and require non-revocable four-year scholarships which would ensure that college athletes (especially those in revenue-producing sports) be treated as students rather than employees.

Dr. Fritz Polite, president of The Drake Group stated: “We believe that answers to the fair athlete compensation issue require addressing these NCAA failures rather than tax-exempt educational institutions emulating professional sports businesses.”

The Drake Group further notes that the NCAA’s inability to address these system failures is rooted in the Football Bowl Subdivision’s (FBS) control of the NCAA legislative process. In 1997, a majority of over 1,000 NCAA member institutions conceded to the threats of the top Division I football institutions to leave the organization if the bulk of NCAA championship revenues were not returned to Division I members and again in 2015 if the most commercially successful FBS members within this group were not given autonomy to make their own rules. In reality, the NCAA’s adherence to the “amateurism” mantra is the method invented to control college athlete compensation. NCAA amateurism rules keep college athlete labor costs low while preserving FBS monopolization of what in reality is a minor league professional sport system for elite high school football and basketball players. This professional sport system of questionable academic integrity is being conducted by mostly tax-exempt non-profit institutions of higher education whose faculties, presidents and boards of trustees appear content to look the other way. Given this reality, only intervention by a Congress sufficiently upset by higher education institutions’ use of their tax-exempt statuses to conduct such sport businesses may provide a comprehensive solution.

Further, The Drake Group strongly believes that these NCAA failures have driven the athlete compensation issue into the courts, which is the wrong place upon which to depend regarding the development of any coherent and educationally defensible solution to fair economic treatment of college athletes. Courts by nature and purpose make piecemeal decisions for a limited number of class actions of plaintiffs based on a narrow set of principles and facts. “Rules of evidence, constrained testimony, limited briefing, and artfully constructed oral arguments are not conducive to full analyses of all the stakeholders’ information, positions, and implications thereof necessary to resolving these important public policy matters.”[1] They make incremental changes and often do not have a full understanding of impact of such changes on the larger whole. For example, any court decision that allows compensation decisions to be relegated to athletics conferences simply changes the driver of the Division I “arms race” from the richest institutional athletic programs to the richest athletic conferences, effectively accelerating its pace and increasing gaps between the “haves” and “have nots.”

The paper explains the differences between educational sport and professional sport, exposes the myth of amateurism and details a College-Athlete-as-Bona-Fide-Student model that should replace the current NCAA compensation model. Also examined are the weaknesses of three college athlete compensation models currently being offered by others: (1) a College-Revenue-Sport-Athlete Special Compensation model being advanced by several anti-trust lawsuits brought by college athlete plaintiffs, (2) an Institutional-Athlete-Employee model proposed for those intercollegiate sports that are “self-supporting,” that might exist inside the institution’s tax-exempt education organization as an auxiliary enterprise and (3) a College-Athlete-and-Affiliated-Professional-Sports-League Operating Outside the NCAA System model designed to supplement college athlete income.

[1] Jayma Meyer and Andrew Zimbalist. (2017) “Reforming College Sports: The Case for a Limited and Conditional Antitrust Exemption.” The Antitrust Bulletin, p. 20.

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