Running head: THE NEW AMATEURS



Running head: THE NEW AMATEURS

The New Amateurs: The National Collegiate Athletic Association’s Application of Amateurism in a Global Sports Arena

Scholars have examined the NCAA’s (National Collegiate Athletic Association) definition, development, and application of amateurism (Allison, 2001; Byers, 1995; Crowley, 2006; Falla, 1981; Glader, 1978; Sack & Staurowsky, 1998; Smith, 1993; Thelin, 1996; Watterson, 2000; Wheeler, 2004), but the matter of amateurism as it pertains to international athletes has received limited coverage in academic scholarship even though influence of globalization has led to a steady increase in the number of international athletes participating in NCAA competition (Bale, 1991; Kaburakis, 2007; NCAA, 2007; Weston, 2006). One development that has not been sufficiently addressed in the academic literature is how the influence of international athletes, the decision by Division I to not deregulate amateurism, and changes within the student-athlete reinstatement (SAR) governance process all intersected to create a new application of amateurism in the NCAA. It is important to examine this intersection not only because this particular evolution of amateurism policy remains uninvestigated, but also because it is important to understand the scope of forces that influence contemporary policy-making. In this paper, the forces of globalization, emerging technology, legal decisions, the demands of member institutions, the pressure on coaches to win, and student-athlete welfare all converge to alter the way amateurism is applied by the NCAA in the twenty-first century.

This paper will demonstrate how the NCAA developed a creative institutional strategy to alter its application of amateurism in response to pressures in the external environment that sought eased amateurism restrictions during the recruitment of prospective international athletes. This paper argues that the NCAA utilized the SAR process to change its application of amateurism in order to grant prospective international athletes eligibility without risking the negative public relations and legal consequences that would have resulted from directly changing the definition of amateurism through deregulation. This paper begins with a review of the factors that have historically influenced the NCAA’s application of amateurism and then addresses the influence of international athletes on the NCAA’s contemporary application of amateurism. The factors that influenced the amateurism deregulation effort of the early 2000s are subsequently examined, and then an explanation is given for why Division I rejected any substantive changes to the stated definition of amateurism. The paper concludes with a discussion of why the NCAA utilized the SAR process to change its application of amateurism.

Review of NCAA Amateurism

The influence of external forces and the demands of internal stakeholders have played a key role in the NCAA’s application of amateurism (Crowley, 2006), which is the bedrock principle that sets intercollegiate athletics apart from professional sport. While the fundamental definition of amateurism and who is considered an amateur has generally stayed consistent throughout the history of the NCAA (Allison, 2001; Crowley, 2006; Glader, 1978), the application of amateur principles has evolved over time as the NCAA has recognized the demands of its constituents and the realities of its external environment (Crowley, 2006).

Various external forces and logics have influenced universities and the NCAA to alter the application of amateurism to meet their needs, while leaving the stated definition of amateurism virtually unchanged in the NCAA Manual. These factors include the need for American colleges to create the perception that college sports are amateur, the tradition of institutional autonomy influencing the NCAA’s governance structure, the notion that college athletics needs to be amateur for financial reasons, and the win-at-all-costs culture in college sports.

Perception of amateurism. There has always been a desire by universities to foster the perception that intercollegiate athletics is an amateur enterprise (Byers, 1995). This desire is connected to the perception that athletics are and should be educational and that students participate for educational benefits. The desire to appear as amateur actually pre-dates the NCAA when cultural differences between England and America prevented the traditional application of English amateurism in America (Sack & Staurowsky, 1998; Smith, 1988). As universities that invested in intercollegiate athletics recognized the prestige, support, and resources that could be accumulated through successful athletic teams, they implemented a professional model of athletics because an amateur model would have led to an inferior product (Smith, 1988; Smith, 1993). However, they claimed to be amateur in order to convince the middle and upper class that American universities were of high social esteem (Smith, 1988). Catering to the sensibilities of the middle and upper class served to protect the ability of institutions to simultaneously garner social esteem and field winning teams.

Similarly, after the failure of the Sanity Code and the implementation of full ride scholarships in 1956, the NCAA invested in a vigorous public relations campaign to create the term “student-athlete” in order to convince taxpayers, judges, and lawmakers the NCAA was an educational enterprise and that athletes were typical students (Byers, 1995; Sack & Staurowsky, 1998; Staurowsky, 2004). This public relations campaign served to protect the NCAA’s powerful economic and political interests (Sack & Staurowsky, 1998). Finally, the split into three divisions in 1973 permitted the presence of Division III institutions to “provide the seed of truth” (Staurowsky, 2004, p. 155) that amateurism exists in intercollegiate athletics.

Institutional autonomy. The tradition of institutional autonomy in American universities has also influenced the application of amateurism. Home rule was the basic governance structure of the NCAA for its first fifty years and was predicated on the autonomy individual institutions believed they should have in making decisions (Crowley, 2006; Thelin, 1996). However, as applied to the NCAA, home rule essentially prevented enforcement of rules, which meant institutions could disregard the Association’s stated amateur policies (Sack & Staurowsky, 1998; Smith, 1988). This led to instances where the NCAA was powerless to stop activities that clearly violated its amateur principles, such as athletes receiving payment for summer baseball and various conferences permitting athletic scholarships (Thelin, 1996; Watterson, 2000).

Financial benefits. The notion that college athletics must be amateur for financial reasons has also influenced the application of amateurism. Because there has always been an economic incentive to persuade the public and government officials that college sports is an amateur enterprise, the NCAA has invested numerous resources into sustaining a system comprised of cheap labor (Lawrence, 1987). Institutions avoid paying athletes a salary, entering into an employee-employer relationship that would require the payment of benefits and workers’ compensation, and paying income tax while receiving tax-exempt status (Brand, 2006).

Emphasis on winning. Finally, the win-at-all-costs culture in intercollegiate athletics has caused the NCAA to alter its application of amateurism. Not only did an emphasis on winning facilitate the adoption of a professional model prior to the establishment of the NCAA (Smith, 1988), but it has also affected decisions made by the NCAA since its inception. For example, as administrators realized that it was virtually impossible to stop institutions from offering athletic scholarships despite the fact that such a practice opposed NCAA principles, it was apparent that winning took precedence over a commitment to amateurism (Thelin, 1996; Watterson, 2000). Coaches wanted to win to keep their jobs and advance their careers, and institutions wanted to win to gain prestige in the eyes of students, alumni, and lawmakers as an institution of higher education (Chu, 1989; Toma, 2003).

In conclusion, the desire for American colleges invested in intercollegiate athletics and for the NCAA to appear as an amateur enterprise, a status which offers a financial benefit, while simultaneously pursuing a win-at-all-costs culture has meant that the NCAA’s stated definition of amateurism has not changed much since 1906. However, changes to amateurism have always occurred through the application of the stated rules. The next section describes the influence of international athletes on the NCAA’s contemporary application of amateurism.

International Athletes

The need for coaches and member institutions to recruit international athletes has been an important factor in the NCAA’s contemporary application of amateurism. A variety of external forces combined to alter the application of amateurism to make it possible for international athletes to obtain or redeem their amateur status to participate in college sports, including globalization, the emergence of new technology, the pressure on coaches to win, the need for institutions to gain prestige from winning, and an emphasis on attracting a diverse student body.

Globalization. Athletic departments in the United States search globally for the best athletes in the quest to produce winning teams (Bale, 1991; Bale, 2003; Bale & Sang, 1994; Maguire, 1999). The number of international athletes participating in American intercollegiate athletics has increased steadily since the 1960s (Bale, 2003). In 1991-92 the NCAA estimated 6,833 athletes were international (NCAA, 1996), and by 2006 the NCAA estimated that number had grown to 12,356 international athletes, which accounted for approximately 3.1% of the student-athlete population (NCAA, 2007). In recent years some sports have seen a rapid increase in the number of international athletes. For example, the percentage of male Division I international tennis players increased from 16.6 percent in 1999-2000 to 30.5 percent in 2005-2006 (NCAA, 2007).

The migration of sports talent was a defining feature of the sports industry in the twentieth century, yet not different from other industries (Maguire, 1999; Maguire & Bale, 1994; Solimano, 2008). The movement of athletes from their home country to a foreign country for the purpose of participating in sport is similar to the socially and geographically mobile workforce that comprises most industrial societies (Maguire & Bale, 1994). For example, the rosters of major league franchises in the United States reflect talent migration. In 2006, 27.4 percent of the players in Major League Baseball and 18.2 percent of the players in the National Basketball Association were born outside the United States (Weston, 2006). The migration of sports labor is facilitated by globalization and closely linked to the development of sports worldwide (Maguire & Bale, 1994). The search of global athletic talent is aided by the fact that modern sport has developed into a world system (Allison, 2001; Bale, 1991).

Emerging technologies. The emergence of the internet has also facilitated the recruitment of international talent (Wilson & Wolverton, 2008). Prior to the expansion of the internet, Bale (1991) predicted, “As knowledge of sports scholarships spread beyond the existing knowledge frontier, so the numbers of foreign student-athletes might be expected to rise” (p. 65). Indeed, as the internet emerged, the number of international athletes increased 81 percent from 1992 to 2006 (NCAA, 1996; NCAA, 2007). Not only has the internet allowed international athletes to acquire more information regarding athletic scholarship acquisition at American colleges, but it has also created inexpensive and permissible ways in which coaches can communicate with international athletes (Wilson & Wolverton, 2008). The NCAA does not regulate email communication (Bylaw 13.4.1.2) between institutional staff members and prospects. Because coaches are typically unlikely to take an expensive recruiting trip overseas, they are more likely to communicate via email, which is unregulated and inexpensive. The use of voice over internet protocol technology also decreases the cost of calling prospects overseas. The internet has made easier the flow of information between coaches and international prospects.

Pressure to win. Coaches are under pressure to produce winning teams, and they recruit internationally because they believe foreign athletes will improve their chances of winning (Bale, 1991; Brown, 2004; Weston, 2006; Wilson & Wolverton, 2008). Weston (2006) noted that the arms race is “fueling efforts to recruit top talent internationally, therefore increasing competition among schools to search worldwide for talented players” (p. 835). For coaches,

the pressures to win, and the penalties for losing, are exacting. Many Division I coaches' jobs are predicated on the strength of their programs, causing them to recruit the best talent they can find, in many cases from the international pool. (Weston, 2006, p. 860).

Highly coveted international athletes have dominated competition in recent years, particularly in non-revenue individual sports such as tennis (Brown, 2004; Drape, 2006; Weston, 2006). For example, at the end of the 2007 men’s tennis season, seven of the top ten ranked Division I players were foreign (College Tennis Online, 2007). In the 2005 Division I men’s and women’s singles tournament, 71 of the 128 (55.5%) participants were international athletes, and 110 of the top 200 (55%) individual rankings were international students (Weston, 2006). In men’s and women’s swimming in 2005, international athletes constituted 40 percent of the field at the Division I championships (Weston, 2006).

International athletes have been instrumental to the athletic success at Baylor University, which won either individual or team championships in men’s and women’s tennis and women’s basketball in 2004 and 2005. Seven of the eight varsity players on the men’s tennis team, which won the national championship in 2004 and was the runner-up in 2005, were foreign (Drape, 2006), and one of those international athletes won the individual national title in 2004 and 2005. Seven of the nine women’s tennis players were international, including the 2005 individual national champion, during a stretch where Baylor reached the Sweet 16 and was ranked in the top 10 three consecutive years (Drape, 2006). Finally, the women’s basketball team, which won the 2005 national championship, received 32.2% of its offense from international players.

Not only can coaches create winning programs through the recruitment of international athletes, but coaches can also maintain successful teams with international athletes through the establishment of talent pipelines (Bale, 1991; Bale, 2003; Bale & Sang, 1994; Wilson, 2008). Bale (1991) discovered talent pipelines in which concentrations of athletes from certain countries were found in particular NCAA institutions. Bale (1991) noted that institutions unable to compete for homegrown talent, due to lack of prestige or unattractive campus location, established talent pipelines with a foreign country. For example, a talent pipeline of elite track and field stars from Kenya was found at the University of Texas El Paso, Washington State University, Iowa State University, and the University of Richmond, and a pipeline of track talent from Nigeria was identified at the University of Missouri and Mississippi State University (Bale, 1991). Coaches hope that friend-to-friend recruiting will result in attracting elite athletes from a particular foreign country. The establishment of talent pipelines is an important recruiting strategy, particularly when coaches are unable to compete for homegrown talent (Wilson, 2008).

Prestige acquisition. The institution also benefits from international athletes. First, assuming that international athletes assist the institution in achieving athletic success and that institutions seek prestige from athletic success, it can be argued that institutions “use global human resources to further local pride-in-place” (Bale, 1991, p. 189). Because nationalism is emphasized less than localism in intercollegiate athletics, institutions concentrate on boosting their own success rather than focusing on developing U.S. Olympic talent (Bale, 1991). Hence, the recruitment of foreign talent is a competitive tool to win games, but from a broader perspective it is also a tool used by institutions to acquire prestige. According to Bale (1991), “The world has now become the arena in which place loyalties are constructed through the recruitment of foreign gladiators representing communities...across America” (p. 17).

Diversity. Institutions may also use foreign athletes as a strategy to assemble a diverse student body (Wilson & Wolverton, 2008), a strategy that may “provide a valuable sense of diversity and a positive dynamic which enriches the team environment and educational experience” (Weston, 2006, p. 831). Pickle (2003b) noted that some institutions “have institutional missions based on the inclusion of international students, and in those cases, the student-athlete population mirrors that of the overall student body” (p. 20). American institutions of higher education have historically emphasized the educational, social, and cultural benefits of assembling a diverse student body (Bowen, 1977; Hu & Kuh, 2003), which is part of its ideology that welcomes “within its academic walls a large number of foreign students” (Bale, 1991, p. 39). While international athletes may comprise a small percentage of the total number of athletes, they may be used as a tool in the recruitment of international students to the institution.

The Amateurism Deregulation Movement

As the focus of recruiting shifted to international athletes and coaches capitalized on the competitive advantage gained through recruiting international athletes, athletic administrators at member institutions became increasingly frustrated that it was often times difficult to ensure that international prospects were eligible under NCAA amateurism guidelines. Fundamental differences between the definition of amateurism in the NCAA and other counties and the difficulty member institutions faced in certifying an international prospect’s amateur status created legislative and competitive equity concerns for the NCAA. As a result the NCAA underwent an extensive review of its stated amateur policies.

Incompatible sport governance structures. Kaburakis (2007) established the “fundamental differences in philosophy and culture between the world of NCAA DI and the world of international sport governance” (Kaburakis, 2007, p. 101), which resulted in IPSAs facing difficulties in establishing amateur status with the NCAA (Kaburakis, 2005; Kaburakis, 2007; Weston, 2006). Because IPSAs are governed by the sport federation laws of their home country, which operate under different definitions and rationales of what constitutes the difference between professional and amateur sport, they may have unknowingly violated NCAA amateur regulations (Kaburakis, 2005). According to Kaburakis (2007),

There are cases of adversely affected classes of prospective student-athletes that wish to attend U.S. academic institutions and although according to the laws of their own countries and the regulations of their specific sport entities they are not considered professional athletes, the NCAA DI respective regulations classify them as such, and find them ineligible for intercollegiate athletic competition (p. 101).

Additionally, the NCAA recognized that in a global environment, “it is increasingly difficult to understand how international teams operate in the context of the current definition, since many countries and leagues define ‘professional’ differently” (NCAA, Division I Proposal 2001-96, LSDBi database). Weston (2006) concluded “the different international education programs and athletic systems, coupled with language barriers, varied standards, and inconsistent record-keeping, can lead to uncertain assessments of an [international student-athlete’s] eligibility” (p. 832).

This eligibility issue led to lawsuits against the NCAA. In the case of NCAA v. Lasege (2001), Muhammed Lasege, a men’s basketball recruit from Nigeria, sued the NCAA claiming they arbitrarily and capriciously declared him permanently ineligible for participating in 13 games for a junior club team in Russia. Lasege went to Russia as a 17-year-old in an attempt to obtain an American visa. While in Russia he was kept under armed guard and forced to sign a contract with a junior club team. The trial court determined that the NCAA had ignored mitigating circumstances including economic hardship, cultural disadvantages, ignorance of NCAA rules, and coercion in signing the contracts (Kaburakis, 2007). The trial court concluded that Lasege did not intend to become a professional athlete, but only to obtain a visa to enter the United States. The Appeals Court ruled in a similar fashion, but the Supreme Court of Kentucky ruled in the NCAA’s favor by concluding the NCAA had authority to make eligibility decisions in order to enforce regulations that preserve amateurism.

Difficulties in determining amateur status. As a result of the fundamental differences between international sport governance structures and the NCAA, member institutions experienced difficulties in determining the amateur status of international prospects. According to Weston (2006), “the varied systems in countries throughout the world for measuring academic standards and for structuring and sponsoring sport activities present difficulties when seeking to ensure uniform academic eligibility and amateur athletic standing for international and domestic students” (p. 831). This difficulty led to competitive equity concerns among the membership because one institution may have considered an international recruit ineligible, while another school determined that he or she was eligible (Kaburakis, 2007; Weston, 2006). While limited time and resources prevented some member institutions from conducting background checks on the prospect, the limited benefit to conducting extensive research only to determine an athlete is ineligible also contributed to competitive equity concerns among institutions (Pickle, 2004).

Achieving competitive equity became important as the NCAA recognized the need to adopt equitable, standardized procedures through deregulation that would determine the amateur status of international recruits. Christine Grant, chair of the Division I Amateurism and Agents Subcommittee, acknowledged the issue of competitive equity as the NCAA began deregulation:

What emerges from an analysis of the current state of amateurism is an exceedingly complex series of problems because we in the NCAA are attempting to collect accurate data in order to treat in a uniform fashion all prospective student-athletes in the world (Hawes, 2000, Amateurism changes again, p. 16).

Amateurism Deregulation Proposals and Results

The most direct way to offer international athletes with professional experience redemption of their amateur status was to change the stated definition of amateurism. While Division II and Division III made radical changes to the definition of amateurism, Division I adopted only a limited deregulation package. Division II made the most significant changes by allowing prospects to enter a professional draft, sign a contract, play professionally, and receive compensation as a professional (Crowley, 2006; Pickle, 2002). Prospective student-athletes (PSA) still have eligibility after spending a year in residency and losing a year of eligibility for every year of organized professional competition (Crowley, 2006; Pickle, 2003b). Division III adopted a similar package, with the exception of allowing prospects to be paid as a professional (Crowley, 2006; Hawes, 2002). Division I, on the other hand, adopted only a limited deregulation package. Figure 1 identifies nine proposals considered for PSAs in Division I and identifies whether or not the legislation was accepted or rejected (Brown, 2001; Brown, 2002a).

Summary of Division I amateurism deregulation. While Division I accepted a few proposals, it defeated proposals that would have radically changed the stated definition of amateurism. The proposals would have allowed PSAs to engage in professional athletics during high school and after their first opportunity to enroll in college. Specifically, Division I rejected proposals that would have allowed prospects to sign a contract with a professional team, participate on a professional team, and accept compensation for athletics participation. Subsequently, the seasons-of-competition rule (Proposal 99-106 and 99-106-1), which would have allowed prospects to engage in professional competition up to one year after their first opportunity to enroll in college, was rendered moot due to the rejection of the proposal that would have allowed prospects to compete as a professional. The next section explains why Division I rejected the same proposals that were accepted in Division II and III.

Public Relations and Legal Consequences

While Division I adopted a limited deregulation package that permitted prospects to enter a professional draft and accept prize money, it rejected proposals that would have allowed prospects to sign a contract and accept compensation to compete as a professional. These proposals would have radically changed the fundamental definition of who would be considered amateur. Division I rejected legislation that would have permitted former professionals from competing in order to avoid negative public relations and legal consequences that may have resulted upon the acceptance of those proposals.

Public relations consequences. It was established earlier that the NCAA and its member institutions have always faced the need to foster the perception that intercollegiate athletics is an amateur enterprise. The NCAA and its member schools have always promoted the notion that college sports are amateur despite operating in a professional manner. Prior to the establishment of the NCAA, universities made public statements praising the benefits that derive from participation in sport as an amateur, even though they adopted a professional model of operation that included recruiting and subsidizing athletes, hiring professional coaches, and competing against professionals (Smith, 1988). After passing legislation that permitted institutions to offer full ride athletic scholarships, the NCAA invested in a public relations campaign that created the term student-athlete to convince Congress, taxpayers, media, and the courts that student-athletes were amateurs pursuing an education (Byers, 1995).

Passing legislation that would have allowed professionals to compete in intercollegiate athletics would have significantly damaged the notion of amateur student-athletes. By fundamentally changing the definition of who is eligible to participate as an amateur, high profile institutions (Division I) would have inadvertently established a third party (professional sport organizations) relationship between the institution and the athlete (Brown, 2001). Professional sport organizations could have sent their players back to the college ranks in order to improve their skills after one season with the professional team. Such a change could have undone the years of public relations work invested by the NCAA in convincing key stakeholders that the NCAA was an educational organization overseeing the conduct of amateur sport for universities.

Legal consequences. Fully deregulating amateurism at the Division I level, which would have meant allowing professionals to compete in intercollegiate athletics, also could have placed the NCAA at greater risk of losing antitrust lawsuits. The loss of an antitrust lawsuit could possibly devastate the NCAA because athletes could potentially recover monetary damages or receive injunctive relief, which would invalidate the regulation in question (Chin, 1993). However, courts have typically recognized that NCAA rules are created to preserve amateurism and have given deference to the NCAA when cases involve eligibility rules (Menzel, 2002). The NCAA’s preservation of amateurism defense has been successful in legal battles (Chin, 1993; Menzel, 2002; Mitten, 2000; Muenzen, 2003; Nagy, 2005), but allowing professionals to compete in Division I intercollegiate athletics put this defense in jeopardy (Menzel, 2002; Muenzen, 2003) for the reasons set forth below.

Prior to identifying how deregulation could have put the NCAA’s amateurism defense in antitrust cases in jeopardy, it is helpful to discuss the legal process in regards to antitrust lawsuits. Courts have historically applied rule-of-reason analysis in antitrust cases involving the NCAA. In rule-of-reason cases, the plaintiff, in this case a prospective athlete challenging a SAR decision that rendered him or her ineligible for a season of competition due to amateurism violations occurring as a result of competing with professionals, must first demonstrate that the agreement (NCAA regulations) has a substantially adverse effect on competition (Nagy, 2005). Second, the defendant must show that the defendant’s challenged conduct promotes a sufficiently procompetitive objective (Nagy, 2005). If the plaintiff meets the above burden of proof, the NCAA must show that its disputed regulations have procompetitive benefits, such as preserving amateurism, maintaining the connection between education and athletics, and sustaining competitive balance (Menzel, 2002). “The essence of the amateurism defense is that the challenged restraints are in furtherance of the NCAA’s objective of amateurism, and that it is a procompetitive justification for the NCAA’s restraints that outweighs any anticompetitive effect of these restraints” (Meunzen, 2003, Cases and explanations, ¶ 1).

Lastly, if the court determines that the NCAA still has procompetitive benefits that outweigh the anticompetitive effects of the regulation, the plaintiff could still argue that there is a less restrictive way to further the same objective (Menzel, 2002). For example, the plaintiff could argue that instead of being withheld from a season of competition for competing against professionals, he or she could sufficiently be sanctioned by serving a less strict withholding condition. Thus, the argument would be that a stricter enforcement of serving a whole season away from competition does not inherently serve the purposes of amateurism or the other fundamental purposes of the NCAA in a more efficient manner than a less restrictive sanction.

Some courts have held that noncommercial restraints, such as NCAA eligibility rules, are immune from antitrust analysis (Meunzen, 2003). These courts found that the Sherman Act does not apply to the NCAA’s eligibility rules because they do not give the NCAA a commercial advantage (Gaines v. NCAA, 1990; Jones v. NCAA, 1975; Justice v. NCAA, 1983; Smith v. NCAA, 1998). However, not all courts have removed noncommercial restraints from antitrust analysis. Regulations such as coaching staff limits (Hennessey v. NCAA, 1977), the no-draft rule (Banks v. NCAA, 1992; McCormack v. NCAA, 1988), the no-agent rule (McCormack v. NCAA, 1988), and recruiting rules and punishments (Hairston v. Pacific Ten Conference, 1996) have been scrutinized under rule of reason analysis. While these courts did not excuse NCAA rules from antitrust analysis, they did accept amateurism as an affirmative defense within a rule of reason analysis (Meunzen, 2003). In conclusion, “while some courts have not given an antitrust exemption to noncommercial restraints, they have, at minimum, recognized the necessity of certain restraints within intercollegiate athletics, and the importance of the NCAA itself, by utilizing a rule of reason analysis” (Meuzen, 2003, Cases and explanations, ¶11).

The promotion of amateurism as a procompetitive effect is essential for the NCAA to succeed in antitrust lawsuits. Courts have consistently approved of the NCAA’s mission and its attempts to preserve amateurism (Meuzen, 2003). The NCAA has also been successful in proffering the defenses of maintaining a link between academics and athletics and promoting competitive balance (Menzel, 2002). In summary, the courts have given significant deference to the NCAA in cases involving its eligibility rules and ability to create rules that preserve amateurism and competitive balance (Menzel, 2002; Meunzen, 2003; Nagy, 2005).

A quarter century of court decisions has relied upon the notion that the NCAA is an educational organization promoting the benefits of amateurism (Nagy, 2005). Thus, any changes to the stated definition of amateurism may impact how the courts view the NCAA’s role in preserving amateurism. The deregulation package that was debated by the Division I membership from 1999 to 2002 represented such a change to the stated definition of amateurism. The proposals would have allowed prospects to sign a contract, accept a salary, and participate in professional athletics up to one year after their first opportunity to enroll in college. In other words, professional athletes would have been allowed to participate in Division I athletics. The impact of this element of the deregulation package is discussed below.

Allowing professionals to compete as amateurs could have potentially opened the door for PSAs to present successful antitrust litigation against the NCAA. The first two problems would have occurred in the second stage of rule of reason analysis when the NCAA must show that its restraints promote a procompetitive objective. At this stage, the NCAA could argue that its regulations promote amateurism or competitive balance. The third potential problem would have come in the final stage, when the plaintiff can argue that there is a less restrictive way for the NCAA to further its objectives. At this stage a PSA could have argued that the rules in Division II were the least restrictive way for the NCAA to further its objectives.

Allowing professionals to compete as amateurs would have certainly blurred the demarcation between professional and amateur athletics (Division I Bylaw 1.3.1) that the NCAA had worked a century to preserve (Menzel, 2002). The courts have used the NCAA’s language of “retaining a clear line of demarcation between intercollegiate athletics and professional sports” (Gaines v. NCAA, 1990) in making rulings that determined the NCAA’s amateurism regulations were procompetitive justifications of the restraint (Menzel, 2002). It would have been difficult for the NCAA to argue that it retains a clear line of demarcation if professionals were allowed to compete as amateurs. The NCAA would have to explain to the courts why student-athletes were allowed to compete as professionals before enrolling in college (Meunzen, 2003).

The second argument available to the NCAA is that its regulations help maintain competitive balance within intercollegiate athletics (Menzel, 2002). However, “because the NCAA is willing to allow [prospective student-athletes] to play organized [professional] athletics for a full season, this defense will be less effective” (Menzel, 2002, Antitrust law section, ¶13). According to Menzel (2002, Antitrust law section, ¶14), “the courts may very well be reluctant to find that by allowing this to happen, the NCAA continues to foster fair competition.” Additionally, it would have been difficult for the NCAA to argue that forcing a student-athlete to sit out one year of competition would eliminate the competitive advantage gained by participating in professional athletics, especially considering that athlete would be practicing with his or her team during the course of the year (Menzel, 2002).

Third, even if courts would have accepted the NCAA’s defense of amateurism or competitive balance and determined that the procompetitive benefits outweigh the anticompetitive effects, the plaintiff athlete could argue that there was a less restrictive way for the NCAA to further the same objectives. Evidence of a less restrictive way is found by comparing deregulation proposals in Division II and Division I. Division II permitted prospects to participate in three years of professional competition prior to enrolling in college for the first time. In contrast, the legislation proposed in Division I (Proposal 99-106-1) permitted prospects to compete in only one season of professional competition prior to initial college enrollment. Originally, Division I proposed similar legislation to Division II, but Division I wanted to prevent institutions from recruiting ringers with only one year of eligibility remaining. According to Menzel (2002, Antitrust law section, ¶15),

Quite simply, the [prospective student-athlete] could argue that the one-year limitation placed on an athlete’s ability to participate in organized athletics after high school graduation is not the least restrictive means available. To this end, the NCAA may have a hard time rebutting such an argument since its original proposal was nearly identical to the Bylaws passed by Division II.

To summarize, passing the full complement of deregulation proposals – especially the proposals that were defeated in 2002 that allowed competition with professionals up to one year after the first opportunity to enroll – would have presented legal trouble for the NCAA in fighting antitrust lawsuits. The traditional arguments used successfully by the NCAA – that its restrictive regulations promote amateurism and competitive balance, which should be considered procompetitive objectives – could have potentially been rendered less effective. Additionally, Division I prospects could have argued that the rules in Division II that permitted a prospect to compete professionally for three years represented a less restrictive way for the NCAA to carry out its regulations. In conclusion, Division I saved its amateurism defense in antitrust cases by passing a lesser version of amateurism deregulation that did not directly change the stated definition of amateurism by allowing professionals to participate (Meunzen, 2003).

The Problem Facing the NCAA

As Division I coaches and member institutions recognized the ability of international athletes to win games and prestige, they worked through their collaborative policy-drafting and voting bodies policies that would make it easier for international athletes to be declared amateur. Simply put, they urged the governance structure to adopt policies that would make it easier for international athletes to be eligible for participation. However, accepting legislation that would have changed the definition of amateurism in the NCAA Manual would have resulted in negative public relations and legal consequences.

The Solution: Student-Athlete Reinstatement

In response to this problem, the NCAA utilized an existing process within its governance structure to make changes to the application of amateurism without changing the stated definition. Facing a growing demand from the membership to identify ways in which international athletes can obtain amateur status without changing the definition of amateurism and risking negative public relations and legal consequences that could alter the structure of intercollegiate athletics, the NCAA’s solution was to make student-athlete reinstatement the vehicle by which IPSAs could regain their amateur status despite violating elements of the NCAA’s stated definition of amateurism.

Evidence that SAR is how the NCAA Applies Amateurism

The SAR process was chosen because it allows the NCAA to make subtle changes to its amateurism policies. While Bylaw 12 in the NCAA Manual tends to indicate unequivocal amateurism rules, the decisions rendered by the SAR staff indicate the NCAA’s willingness to entertain ambiguity in the stated rules. Despite the numerous actions identified in Bylaw 12 that result in ineligibility, an examination of decisions made by the SAR staff provides a more complete picture of how amateurism is applied by the NCAA. Research conducted on the SAR process and chronicled in this section demonstrates that the NCAA applies amateurism through the SAR process. First, changes to the SAR staff’s approach to decision making and changes to the penalty structure will be examined. Second, the results of SAR cases, including results germane to the discussion of international athletes, will be addressed.

Changes in approach to decision making. The early 2000s were an important time of change and transition in the SAR process and the NCAA’s philosophy toward amateurism. These changes have affected athletes who must navigate the reinstatement process for violating amateurism rules. In addition to all three divisions undergoing an intensive examination of their amateurism rules, which culminated in Divisions II and III significantly changing their stance on amateurism, the SAR staff changed its approach to decision making following the implementation of the NCAA’s student-athlete first initiative. In an effort to provide a more responsive and less bureaucratic decision making process, NCAA President Myles Brand championed a change in culture that resulted in student-athletes receiving more positive outcomes in waiver requests and reinstatement appeals (Brown, 2003). Brand noted,

The idea is not so much a policy change, a rule change or a legislative issue. It is a cultural change on how we interpret the rules we have. I have confidence in our committees…to reach decisions that more often give student-athletes the benefit of the doubt (Brand, 2003, p. 4).

The ability to give athletes the benefit of the doubt resulted from changing the focus of case analysis from case precedent to mitigating circumstances (Brown, 2003). According to Brand,

I expect the national office staff and certainly the reinstatement and waiver committees to be able to use good common sense in applying the rules. This good judgment will require looking at the mitigating circumstances in each case more than relying simply on a literal reading of the rule or case precedent for a decision. There are cases in which a common-sense approach would lead to a more forgiving decision (Brand, 2003, p. 4).

As the decision making culture in SAR shifted from bureaucratic based on case precedent to flexible based on mitigating circumstances, the NCAA created more opportunities to analyze the unique facts of the case, and thus for ambiguity in its stated amateur policies. The SAR staff shifted away from dictated outcomes based on case precedence to a focus on approaching each case on the merits of its unique mitigating factors. With this change in approach, the staff is now responsible for discussing what factors should be considered in the analysis of various cases. Most importantly, the result of these discussions regarding mitigating circumstances and the effect they have on eligibility decisions defines the way amateurism is applied in the NCAA.

Changes in penalty structure. Occurring at the same time as the discussion of amateurism deregulation and the changes in the SAR staff’s approach to decision making was a rapid succession of changes to the penalties incurred by athletes competing in professional competition. The distinction between the definition of amateurism in the NCAA Manual examined by scholars, taxpayers, and the courts and the application of amateurism implemented through the decisions made by the SAR staff can be illustrated in examining the changes to the penalty structure. Four key changes to the penalty structure are displayed in Table 1.

In 1999 the student-athlete reinstatement committee (SARC) established a two-pronged approach for analyzing amateurism cases involving competition as a professional. First, an athlete was not reinstated if the athlete’s actions indicated intent to professionalize. Second, if the actions did not indicate intent to professionalize, the athlete was reinstated and withheld from the same number of games in which he or she participated at the professional level. For example, if an athlete competed in eight professional games, he or she would sit out eight college games. The Division I Management Council amended the one-for-one withholding condition in 2001, a change which reduced the penalty for competing with or against professionals from one-for-one to a twenty percent withholding condition (“Preliminary report,” 2002). For example, if an athlete competed in eight professional games, he or she would sit out two college games.

After the decision concerning deregulation was confirmed by the Division I Board of Directors in 2002, the SARC made changes to its approach to decision making and the penalties given to prospects competing against professionals. To begin, the SARC made significant changes to how it approached reinstatement cases involving professional competition. According to the SAR staff at the time of the change,

Noting that the current philosophy focuses on whether the student-athlete intended to professionalize, the committee has been considering whether a more objective approach would be more appropriate for the reinstatement process (“Preliminary Report,” 2002, Description of amateurism analysis and potential shift ¶ 1).

The SARC moved away from the intent-to-professionalize method to a reasonable person standard because the former standard resulted in inconsistent reinstatement decisions (Brown, 2001). In sum, the reasonable person standard shifted from the subjective analysis of analyzing intent to a more objective approach focused on actions rather than intent (Pickle, 2003a).

Additionally, the SARC distinguished between prospects competing against professionals prior to the first opportunity to enroll and subsequent to the first opportunity to enroll, but prior to actual enrollment. Prospects participating on a professional team after their first opportunity to enroll (typically the year between high school graduation and initial college enrollment) would be permanently ineligible. In contrast, prospects that competed on a professional team prior to their first opportunity to enroll and received no more than expenses and did not sign a contract would be penalized with a one-for-one withholding condition not to exceed one season. The one-for-one withholding condition was a departure from the 20 percent withholding condition and a return to the penalty assessed in 1999 (Brown, 2002b).

After assessing the influence of the Association’s student-athlete first decision making culture and the impact of the standard of review changes made in 2002, the SAR staff and committee approved new guidelines that give the committee increased flexibility in amateurism cases to determine whether the violations warranted permanent ineligibility (“Reinstatement group gains flexibility,” 2006). The revised guidelines are “consistent with the general philosophy of the previous directive for amateurism violations that the Division I Management Council approved in 2002 and reaffirmed in 2004, but they afford the committee and staff with the flexibility needed to consider the unique facts of each case” (“Reinstatement group gains flexibility,” 2006, p. 11). Three years of applying the previous directive led the SAR staff to believe that it was unnecessarily restrictive in some cases (“Reinstatement standard,” 2005). The new guidelines, endorsed by the Management Council in January 2006, require the staff and committee to review each case under a “reasonable person” standard to determine if the facts of the case warrant permanent ineligibility (“Reinstatement group gains flexibility,” 2006, p. 11). In sum, the new directive permitted the staff greater flexibility in applying amateurism rules.

The previous penalty was that prospects competing subsequent to the first opportunity to enroll would be ineligible. The new policy implemented a 2-for-1 withholding condition with no maximum (“Reinstatement standard,” 2005). The penalty for prospects competing against professional competition prior to the first opportunity to enroll remained as a 1-for-1 withholding condition, with a maximum penalty of one season (“Reinstatement standard,” 2005). The new standard allowed prospects to participate in professional competition subsequent to their first opportunity to enroll, provided they serve a 2-for-1 withholding condition.

In conclusion, the penalty structure utilized by the SAR staff is the way that the NCAA applies the stated definition of amateurism found in Bylaw 12. Facilitating the rapid change in penalty structure was the change in decision making approach to focus away from case precedent to flexible based upon mitigating circumstances. This more responsive, flexible, student-athlete friendly approach was perfectly in-tune with the calls for finding a way to attend to the memberships’ need to declare international athletes eligible for competition while at the same time not compromising amateurism as defined in Bylaw 12.

Results of SAR cases 2004-2006. Data collected on all 430 amateurism SAR case between 2004 and 2006 revealed that student-athletes were reinstated in 94.2% of the cases (Pierce, 2007). This result confirms that an examination of the decisions made by the SAR staff is needed to understand the NCAA’s amateur policies. Examining Bylaw 12 may reveal the stated definition of amateurism, but with most cases resulting in reinstatement, an understanding of SAR is needed to understand how the NCAA applies amateurism.

Comparison of penalties given to prospective international and domestic athletes. In comparing the results of cases involving prospective international prospective student-athletes (IPSAs) and domestic student-athletes (DSAs), IPSAs were reinstated at a similar rate to DSAs as shown in Tables 2-5, but received stricter withholding conditions than DSAs as shown in Tables 6-8 (Pierce, 2007). The fact that IPSAs served more significant withholding conditions than DSAs can be demonstrated by examining the number of games from which the athlete was required to be withheld and the amount of money that was repaid. Table 7 displays the number of games imposed as a withholding condition, and table 8 displays the repayment values imposed by the SAR staff for IPSAs and DSAs in Bylaws 12.1 (payment), 12.2 (competition against professionals), and 12.3 (agents).

The SAR staff required that IPSAs be withheld from more games than DSAs as a condition to gain reinstatement. As can be seen in Table 7, over half of DSAs were required to sit out less than 2-3 games or 10% of the season, while only one-third of IPSAs were required to sit out as many games. Stated differently, two-thirds of IPSAs were withheld in excess of 4 games or 20% of the season, while less than half of DSAs were withheld from as many games. IPSAs also accounted for 76.9% of the cases in which the SAR staff imposed a withholding condition of at least one season and 73.3% of the cases requiring 21-30 games or half the season.

The SAR staff also required IPSAs to repay more money than DSAs as a condition to gain reinstatement. The median repayment value for IPSAs was $500 while the median repayment value for domestic SAs was $176. As can be seen in Table 8, nearly three-fourths of DSAs repaid less than $500, while half of IPSAs repaid less than $500. Stated differently, 50% of IPSAs repaid a benefit greater than $500, while only one-fourth of DSAs repaid a benefit greater than $500. Additionally, IPSAs accounted for 70% cases that required repayment in excess of $3,000, and IPSAs accounted for two-thirds of the cases that required repayment in excess of $2,000. In contrast, DSAs accounted for nearly three-fourths of the cases that required repayment less than $100.

In sum, Division I IPSAs were reinstated at a similar percentage as DSAs in violations of NCAA regulations regarding receipt of payment, professional competition, and agents. However, as a condition to reinstatement, IPSAs served more significant and stricter withholding conditions as measured by number of games withheld and amount of money repaid. This result occurred as the NCAA recognized the public relations and legal consequences of changing the definition of amateurism through deregulation and the competitive equity concerns among the membership of reinstating IPSAs with only minor withholding conditions.

Conclusion

As coaches and member institutions recognized the positive impact of international athletes and responded to the driving force of globalization and talent migration in sport, they wanted greater access to international prospects in such a way that was competitively equitable. However, Division I recognized the potentially hazardous public relations and legal consequences that could have befallen it and rejected deregulation proposals that would have permitted PSAs to participate, receive a salary, and sign a contract as a professional after their first opportunity to enroll in college without penalty. Such legislation would have fundamentally altered the definition of who is considered an amateur. In order to create a mechanism that would grant IPSAs eligibility to participate in intercollegiate athletics without rewriting the definition of amateurism, the NCAA used its reinstatement process to issue penalties to international prospects that had competed as a professional. The results documented by examining reinstatement cases confirmed that IPSAs were reinstated upon the condition of serving a withholding penalty that was more stringent than DSAs due to the difference in sport governing structures abroad. The rationale of the SAR staff also confirms this point:

Although participation on a professional team is a serious violation, the act in and of itself does not cross the threshold warranting permanent ineligibility. However, the serious nature of the violation and the competitive advantage gained will be addressed through appropriate withholding conditions (“Reinstatement standard,” 2005, p. 3).

The SAR process is the way in which amateurism is applied by the NCAA. Division I altered its application of amateur principles to permit former professional athletes, typically IPSAs, to participate as amateurs, provided they serve a penalty, while leaving the stated definition of amateurism and who is considered an amateur essentially untouched.

The result achieved through using the SAR process was the same as would have been achieved through deregulating amateurism, with the exception of international student-athletes serving withholding conditions prior to actually being eligible to participate. International prospects were predominantly reinstated upon the condition of serving a withholding penalty that was more stringent than their domestic counterparts. To conclude, Division I made student-athlete reinstatement the vehicle by which IPSAs could regain their amateur status despite violating elements of the NCAA’s stated definition of amateurism.

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