that any report of a violation of abuse in college athletics is true, before any real investigation occurs. Although I am not convinced that the system needs a huge overhaul, the main problem is that the NCAA and athletic departments do not have the resources to be police forces. Their enforcement will be reactive and not preventative. And with the money coming to many (especially coaches at the highest levels), administrators will often sweep problems under the rug because they are willing to sacrifice the integrity of a program, and perhaps a university, hoping that that problems will go away or not be noticed. Until university presidents work consistently with other university leaders and athletic departments to treat athletics similarly to all other units in a university, reports of abuses will continue, no matter what rules are written. Mitten: The root of the problem is that the NCAA has a very detailed matrix of rules seeking to preserve the “amateur” nature of intercollegiate athletics in an increasingly commercialized environment, the latter being driven primarily by the American public’s passion for college football and men’s basketball. Although the NCAA and its member universities collectively generate billions of dollars and many coaches receive multimillion dollar contracts, the economic benefits that a student-athlete is permitted to receive are strictly limited to the value of an athletics scholarship, which does not equal the full cost of university attendance. If a student-athlete receives any “extra benefits” from institutional sources or representatives or preferential treatment from third parties (e.g., discounted tattoos), he or she violates the NCAA’s amateurism rules, which adversely affects the person’s intercollegiate athletics eligibility. There is a strong, inherent incentive to violate the NCAA’s amateurism rules, with the attendant need (or so it may seem) to cover up any violations, because of the
substantial tangible and intangible rewards of fielding winning intercollegiate teams, as well as student-athletes’ economic needs and desires to receive a share of the revenues that their talents generate. Permitting universities to pay student-athletes a cash stipend to narrow the deficit between the value of an athletic scholarship and the full cost of attendance (which has been proposed and is currently being evaluated by the NCAA’s membership) should reduce amateurism-rules violations, but won’t completely eliminate them. Perhaps the most effective deterrent would be federal or state laws criminalizing the provision of economic benefits to student-athletes that causes the loss of their eligibility to participate in NCAA athletics, although this is not a measure that I advocate, for a variety of reasons.
What legal limits are there on the latitude sports teams, leagues, or regulators have to sanction athletes for things they do off the field and in their private lives? Mitten: Because the nature or scope of discipline imposed on professional athletes affects their working conditions, it is a mandatory subject of collective bargaining that must be agreed to by the players’ union in each league. As a general rule, team- or league-imposed discipline on professional athletes for off-field conduct is subject to review by an independent arbitrator based on a “just cause” standard of review. The arbitrator usually has authority to reduce the punishment if it is found to be unauthorized or disproportionate to the offense. By contrast, Olympic, college, and high school sports-governing bodies, as well as educational institutions themselves, generally have the unilateral authority to establish reasonable codes of conduct regulating athletes’ off-field conduct (the opportunity to participate in athletics being typically viewed as a conditional privilege rather than a right). Public educational institutions— because they are “state actors” subject to the constraints of the federal constitution—must respect studentathletes’ federal constitutional rights by not prohibiting or disciplining protected private conduct (e.g., consensual sex among adults) and by providing due process before disciplining for off-field misconduct. Discipline imposed on Olympic sport athletes generally is subject to de novo review by an independent arbitrator; by contrast, discipline imposed on college or high school athletes is subject to very deferential, rational-basis review by a court (absent alleged violation of a constitutional right subject to heightened judicial scrutiny). Marquette Lawyer
Matthew Mitten
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