It is hard to see the forest for the trees in college sports these days. The O’Bannon v. NCAA lawsuit, concerning college players’ ownership of their images, and the unionization drive by football players at Northwestern University have obscured a more important issue.
That is the effort by the "Big Five" conferences (Atlantic Coast Conference, Big Ten, Big 12, Pac-12, and Southeastern Conference) to secure legislative autonomy, perhaps even a new Division IV, within the National Collegiate Athletic Association. They threaten that, if rebuffed, they will leave the NCAA and form their own organization. This power grab is a greater threat to the future of college sports than any court decision or unionization campaign.
The threat exists because the Big Five have foolishly put the financial interests of their football and basketball programs ahead of the well-being of college athletes. Members of these conferences wield great power in NCAA councils and on their own campuses, as evidenced by the more than $1.5-billion in media revenue they shared in 2012-13. One result of that financial clout is their veiled warning to the NCAA’s other 1,000-plus members: "Give us autonomy or you will lose your primary funding source."
Instead of giving in to the Big Five, the NCAA should clip their wings by denying the group autonomy. Otherwise, the primacy of commerce over education will accelerate, and athletic programs will become even more divorced from the educational aims of colleges and universities. Moreover, the considerable wealth gap that already exists between the Big Five and the rest of NCAA Division I would widen as the former reap most of the profits from the new College Football Playoff.
The veiled threat by the Big Five to leave the NCAA if denied autonomy is nothing new. In 1997, the Football Bowl Subdivision of Division I, which includes the Big Five, persuaded most NCAA members to replace the traditional one-member-one-vote rule with an FBS-dominated executive committee and a promise that Divisions II and III (68 percent of 1,076 NCAA active members) would receive at least 7.5 percent of NCAA revenue distributions. In 2012-13, members of Division I (32 percent of NCAA active members) received 69 percent of NCAA revenues, and members of the Big Five conferences (6 percent of NCAA active members) received 31 percent of the Division I distributions.
The Big Five quest for autonomy is actually a grab for more power and an even larger portion of the revenue pie than the five conferences enjoy now. The Big Five dominate the FBS, which owns the current four-team College Football Playoff. The 65 Big Five institutions receive 75 percent of the $470-million the playoff earns in annual revenue, while the other 60 FBS institutions share the remaining 25 percent. The Big Five also receive most of the revenues from the NCAA Men’s Basketball Tournament, regular-season football and basketball games, and football bowl games. And the conferences will soon get richer, at least in football, as most experts predict that the playoff will eventually expand to eight teams or more, creating an annual payday in the range of $1-billion. Thus, the Big Five conferences view autonomy as a means to control the anticipated pot of gold at the end of the playoff rainbow.
Naturally, they will not acknowledge that publicly. Instead, they claim that if permitted autonomy, they would use revenues from the football playoff to enhance athletes’ welfare by providing athletic scholarships covering the full cost of college attendance and lifelong scholarship support for former athletes wishing to complete undergraduate degrees.
That claim is disingenuous. The overriding goal of the Big Five is to win football and basketball games, and the conferences will spend as much as they earn to achieve that. Otherwise, they would have proposed, as we have, that the NCAA own the College Football Playoff and use the proceeds to provide expanded scholarship support to all Division I athletes. Instead, the Big Five seek to enhance their existing advantage by providing their athletes with benefits that members of other conferences in Division I cannot match.
Still, since the Big Five usually earn the most revenue, many argue they should reap the bulk of the profits. But that reasoning presupposes a purely commercial model of college sports. If the games are to remain faithful to the educational setting in which they were born, all members of Division I should share in the bounty from the football playoff so as to increase scholarship support and medical benefits to all athletes. Such improvements would assist more athletes than a victory for the plaintiffs in the O’Bannon case.
The most likely beneficiaries of a plaintiffs’ victory in O’Bannon are athletes from the Big Five conferences. Their teams play on television frequently; hence they would be best able to profit from the commercial use of their names, images, and likenesses. In contrast, expanded scholarship and medical benefits would assist every athlete in Division I. And the availability of these benefits might well make athlete unionization a moot point.
To improve college-athlete welfare, we propose that Congress tie NCAA adoption of the reforms outlined below to continued institutional eligibility for federal financial assistance and tax preferences under the Higher Education Act of 1965. The NCAA would own the College Football Playoff and would be required to use playoff revenues to meet the following critical needs:
Athlete injury insurance. The NCAA would provide primary coverage for all 450,000 NCAA student-athletes and could specify that member institutions defray uncovered expenses without causing them to incur any additional costs.
Cost of attendance. All 346 Division I institutions would receive a cost-of-attendance subsidy enabling them to raise the value of full athletics scholarships to federally defined cost-of-education limits.
Academic trust fund. The NCAA would establish an academic trust fund for all Division I athletes to allow a return to college to complete undergraduate degrees.
Right to arbitration. The NCAA would guarantee athletes the right to binding arbitration by mediators approved by the American Arbitration Association to determine whether institutional decisions regarding athletic ineligibility (for nonacademic violations only) or termination of financial aid were made properly.
Football Bowl Subdivision institutions would still receive the $470-million in national-championship revenue distributed by the NCAA, but would have to use it to benefit athletes directly, not to increase coaches’ salaries or build new athletics facilities. They would retain more than $1-billion in annual conference and institutional regular-season and bowl media revenues.
Notwithstanding the O’Bannon litigation and the possibility of athlete unionization, the most pressing needs in college sports today are to ensure academic integrity in big-time sports and to enhance athletes’ welfare. Only the U.S. Congress can achieve these goals by conditioning institutions’ continued eligibility for federal financial assistance on their adoption of the reforms outlined above. We offer more details here. If the Big Five conferences object, they can leave the NCAA and face the loss of federal funding generally and federal tax preferences for their athletics programs. Perhaps then they will see the forest, too, through the trees.
Brian Porto, a professor of law and director of the Sports Law Institute at Vermont Law School, wrote this piece with Gerald Gurney, an assistant professor of adult and higher education at the University of Oklahoma and president of the Drake Group; Donna A. Lopiano, an instructor of sports management at Southern Connecticut State University and president of Sports Management Resources, a consulting firm; B. David Ridpath, an associate professor of sports administration at Ohio University; Allen Sack, a professor of business at the University of New Haven; Mary Willingham, a former learning specialist and academic adviser for athletes at the University of North Carolina at Chapel Hill; and Andrew Zimbalist, a professor of economics at Smith College.