INTRODUCTION 182 I. AMATEURISM AS A FLAWED CULTURAL THEME 183 A. Origins of Amateurism as a Cultural Tradition 184 B. Amateurism in the Modern Olympic Movement 185 C. Amateurism and American Collegiate Sports 188 CHART 1: Major Development of Ideals About Amateurism from the Nineteenth Century to the 1950s 193 II. ENTER THE COURTS AND REGULATORS 193 A. The Antitrust Law Cases 194 B. Labor Law 199 III. A NEW TRADITION IN COLLEGE SPORTS 204 A. The Olympic Model--Free use of the Right of Publicity 205 B. Establishing a Reasonable Student Compensation Model 208 C. Toward Fiscal Responsibility 212 CONCLUSION 214 The myth of amateurism is on the verge of being eliminated. It suffered a fatal blow in the modern Olympic Movement when the international federation for boxing agreed to allow professionals to compete at the Rio Games in 2016. Although the National Collegiate Athletic Association (NCAA) still defends amateurism in the United States as an important theme, many challenges to the NCAA's amateurism rules have arisen in the courts and most recently at the National Labor Relations Board (NLRB). This Article examines the tradition of amateurism in college sports from both cultural and legal perspectives. It looks at the historical underpinnings of amateurism in the parallel dimensions of the Olympics and the NCAA. Born in nineteenth century England as a means to separate the aristocracy from the working classes, American universities adopted the theme of amateurism in sports to promote competitive balance. However, as collegiate athletics grew in popularity and developed into a massive commercial enterprise, universities, under the leadership of the NCAA, used amateurism to ward off challenges from their athletes. Although the NCAA has found some judicial support for the "revered tradition" of amateurism, more recent court challenges have enjoyed some success under claims that the NCAA's rules violate antitrust laws. More recently, student-athletes at Northwestern University gained support from the NLRB for the proposition that players should be deemed "employees" under the law. Moreover, significant challenges to the NCAA's position on amateurism are working their way through the court system.
This Article concludes that it is time for the NCAA to abandon the theme of amateurism and proposes a new tradition in college sports--one that takes into account the players whose efforts make the enterprise possible. This new tradition would have two prongs: First, collegiate players--like their counterparts in the Olympics--should have the right to exploit their name and likeness for commercial purposes. Second, practical guidelines should be established to compensate college athletes (regardless of whether they participate in the money sports of football and basketball) reasonably for their labors.
Amateurism, a once-vaunted theme in the Olympic Movement, came to an end in 2016 when the International Boxing Association, international federation for the sport of boxing, (1) ruled that professionals could compete in the Rio Olympic Games. (2) French aristocrat, Baron Pierre de Coubertin, recognized as the father of the modern olympics, embraced amateurism at the outset of the olympic Movement. The European ideal at the time was an athlete who competed in sport purely for the love of competition. (3) But over the 120-year history of the modern games, from the first modern Olympics held in Athens,
Greece (1896) to the most recent iteration held in Rio de Janeiro (2016), amateurism, as an Olympic theme, has eroded into virtual oblivion. (4)
Despite amateurism's demise in the context of the modern Olympics, the notion that athletes must not be paid has found sanctuary in college sports in the united states, defended by the National Collegiate Athletic Association (NCAA). Despite an increasing barrage of attacks by college athletes in the courts and, more recently, with the National Labor Relations Board, the "tradition" of amateurism in collegiate athletics has survived.
This Article examines the tradition of amateurism in college sports and assesses its continued viability. Part I looks at the historical underpinnings of amateurism in the parallel dimensions of the Olympic Movement and the NCAA. It concludes that the NCAA's perpetuation of amateurism as a noble ideal is a disingenuous application of the myth conceived by the nineteenth century British landed gentry to avoid having to face (and risk being beaten by) the working class on the field of play. Part II looks at the legal and cultural arguments related to amateurism as a tradition in the united states. u.s. courts have struggled with the theme of amateurism applied against the mandates of antitrust and labor law and the principles protecting the commercial rights of individuals. Part III proposes ideas related to the compensation of collegiate athletes toward the establishment of a new tradition to replace the arcane and flawed tradition of the past. This Article concludes that the NCAA should follow the Olympic Movement's example of how to treat players' publicity rights. In addition, this Article proposes some practical guidelines related to the inevitable reality that college athletes should be reasonably compensated for their labors.
AMATEURISM AS A FLAWED CULTURAL THEME
In the important case Board of Regents of the University of Oklahoma v. NCAA, Justice John P. stevens, writing for the majority, referred to the "revered tradition of amateurism in college sports." (5) It is true that traditions, or cultural themes, play an important part of our lives. (6) So what exactly is this "revered tradition," and why is it so controversial today?
Origins of Amateurism as a Cultural Tradition
Although it has been argued by some that amateurism in sports idealized by and descended from the ancient Olympics, this notion has been soundly repudiated. In his book The Olympic Myth of Greek Amateur Athletes, Professor David C. Young reported that he found: "no mention of amateurism in Greek sources, no reference to amateur athletes, and no evidence that the concept of 'amateurism' was even known in antiquity. The truth is," he wrote, "that 'amateur' is one thing for which the ancient Greeks never even had a word." (7)
scholars agree that the modern tradition of amateurism in sports began in England's class-conscious society of the early 1800s. several versions of the story exist, but certain common elements predominate: Organized sport was the province of the aristocracy--young men of title who attended elite colleges such as Oxford and Cambridge. They espoused the notion that glory, not remuneration, was the only true motivation for sports. (8) A more cynical view, asserted by several scholars, (9) is that these young aristocrats promoted the glory of amateurism to avoid having to mingle with and risk losing to the working class individuals. (10) As such, society positioned the leisure class as noble amateurs who played solely for the love of sport while painting the working class as lowly professionals. (11) Kenneth shropshire, a noted author on sports law, explains that the term "professional" in Victorian England "did not merely connote one who engaged in athletics for profit, but was primarily indicative of one's social class." (12) The prevailing view in the latter half of the nineteenth century was that persons who competed for money were inferior in nature and of "questionable character." (13) The aristocratic imperative of the time was deeply rooted in the notion of class discrimination. Shropshire notes that when "an amateur lost a contest to a working man he lost more than the race ... he lost his identity ... his life's premise disappeared; namely that he was innately superior to the working man in all ways." (14)
The nineteenth century theme of amateurism was a cultural construct, foisted by the aristocracy on collegiate athletics and international sporting events reserved for the upper class, and was not the norm for sports at the time. Professor William Gerberding, in his historical analysis of amateurism, notes that "most people nowadays think that amateurism was somehow the original condition of our own organized sports, and that professional sports encroached on an earlier amateur system. The reverse is true." (15) The dominant practice in most competitions during the nineteenth century was "professionalism," or engaging in contests for prize money. (16)
Amateurism in the Modern Olympic Movement
Against this backdrop, the modern Olympic Movement began, in the late 1880s. In 1890, the young French noble Baron Pierre de Coubertin attended the so-called Wenlock Olympic Games organized by British physician, William Penny Brookes. (17) Coubertin was profoundly influenced by these games, ironically organized by Dr. Brookes for the working classes, and organized the International Olympic Committee (IOC) in 1894 to resurrect the ancient Olympics in our time. (18) Baron de Coubertin, although skeptical about how amateurism would be implemented, (19) was heavily influenced by the British who lo bbied to have their brand of amateurism adopted by the IOC. (20)
It was this view that eventually led to the stripping of gold medals from one of greatest athletes of all time, Jim Thorpe, who effortlessly won the two new multi-discipline events, pentathlon and decathlon, at the Stockholm Olympics of 1912. (21) Thorpe lost his medals when an American newspaper published an article about his payment for playing semi-professional baseball prior to the Games. Thorpe, a Native American, had been paid small amounts (essentially "expense money ") for playing but tried to defend himself by writing a letter to the Amateur Athletic Union--the forerunner of the NCAA--stating that he did not understand the rules. (22)
Another American Olympic athlete who attended the Stockholm Games and competed against Thorpe in the Pentathlon, Avery Brundage became the...