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PAY for PLAY: the ROLE of the COURTS in NCAA REGULATION of AMATEURISM in INTERCOLLEGIATE ATHLETICS by Robert S. Kniss a DISSERTA

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PAY for PLAY: the ROLE of the COURTS in NCAA REGULATION of AMATEURISM in INTERCOLLEGIATE ATHLETICS by Robert S. Kniss a DISSERTA PAY FOR PLAY: THE ROLE OF THE COURTS IN NCAA REGULATION OF AMATEURISM IN INTERCOLLEGIATE ATHLETICS By Robert S. Kniss A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of Higher, Adult, and Lifelong Education – Doctor of Philosophy 2017 ABSTRACT PAY FOR PLAY: THE ROLE OF THE COURTS IN NCAA REGULATION OF AMATEURISM IN INTERCOLLEGIATE ATHLETICS By Robert S. Kniss The National Collegiate Athletic Association and the manner in which it governs intercollegiate athletics has come under intense scrutiny in its recent history. The area within the NCAA’s policy’s and legislation that has come under fire the most is its regulation on student- athlete amateurism. Within the past few decades the NCAA has faced an ever growing demand for it to move away from the amateurism model of college athletics, and embrace a model of pay for play. During this time the NCAA has faced numerous lawsuits that challenge the manner in which it operates. For its part, the NCAA has responded to the lawsuits, win or lose, with legislative changes that have satisfied their critics to a degree, keeping them content until the next legal confrontation arises. The NCAA has shown reluctance in scrapping its amateurism model and instead has attempted to fend off the argument of pay for play by adopting new policies as tools of mitigation for the debate. This study is an historical analysis of the court battles the NCAA has faced, and the strategic manner in which the NCAA has adopted new policies to quell the argument of pay for play in college athletics. This analysis takes a look at the cases and examines the mechanisms the NCAA uses to respond to and appease their critics, the institutions it represents, and the student- athletes. A major focus of this study is to examine how the NCAA has been able to make slight adaptions to their policies, along with introducing new programs that border on the concept of amateurism. This study shows that the policy changes made by the NCAA have been reactions to the legal conflicts they have faced and have pushed the limits of pay for play allowing the NCAA to still proclaim that student-athlete amateurism is a sacrosanct concept within intercollegiate athletics. Copyright by ROBERT S. KNISS 2017 I dedicate this dissertation to my wife Summer and my children Imogen, Lysander, and Portia. The unwavering love, support, and encouragement from Summer has been crucial in me achieving my PhD. And for my children to see the importance of education and that they can accomplish anything. v ACKNOWLEDGMENTS Conducting a project as large as a dissertation is not something one can accomplish without the assistance of key people. There are many people who have given me guidance and encouragement along this journey. I would first like to thank Dr. Steven Weiland, my dissertation chair and program advisor. Steve’s guidance and advice was crucial in assisting me in determining how I wanted to narrow my research, and which direction certain aspects of my writing should go. As my program advisor, he was helpful in guiding me through the program and helping me to understand the balance I needed to maintain between my studies and my professional goals. I would also like to thank Sue Carter J.D. whose guidance on my dissertation committee helped me to focus my dissertation on the legal battles the NCAA has faced. Additionally I would like to thank Dr. Brendan Cantwell and Dr. Matt Wawrzynski for challenging me in my writing with tough questions that ultimately enhanced my research overall. Their insights helped me to develop a stronger argument. I would also like to acknowledge Joy Milano and her efforts in editing my work and giving me guidance on where my writing needed improvement. Studying and ultimately completing a PhD is more than just writing a dissertation. It is an educational journey that has its challenges. It is even more of a demanding process when you are attempting to complete this journey while being a full time professional and helping raise a family. During this journey I had many people that gave support in ways that I will forever be grateful. Dr. Mike Zeig and Dr. Stefan Fletcher came into the program with me and I cannot give them enough credit for helping me navigate my way through the program and encouraging me to continue when I began to waver. I would also like to acknowledge Rick Shipman, my director vi and mentor, for allowing me to pursue this degree and for his helpful insights and encouragement along the way. And finally I want to acknowledge my wife Summer Kniss. I do not believe I would have been able to accomplish this PhD without her love and support and allowing me to pursue this ultimate educational accomplishment. vii TABLE OF CONTENTS LIST OF TABLES X LIST OF FIGURES XI Chapter One: Background, Research Questions, and Significance 1 Background to Study 1 Research Questions 5 Significance of this Study 6 Key Events in the History of the NCAA 7 Chapter Two: Brief Literature Review and Research Method 12 Literature Review 12 The NCAA. 12 Collegiate Amateurism. 14 Pay for Play in Collegiate Athletics. 18 Research Method 23 Sample. 23 Documents and Sequence of Steps. 26 Chapter Three: The Sherman Antitrust Act and Televising Collegiate Sporting Events 28 Sherman Antitrust Act History 28 The Sherman Antitrust Act and College Athletics 31 College Football Association. 31 Board of Regents of Oklahoma v. NCAA. 35 District Court. 36 Court of Appeals. 43 Supreme Court. 47 Pay for Play 52 Chapter Four: History of the NCAA Men’s Basketball Tournament and College Athlete Scholarship Issues 54 White v. NCAA 54 Progress of the Lawsuit 55 The Settlement 57 NCAA March Madness Basketball History and Contracts 63 Pay for Play Ramifications 72 Chapter Five: Names, Images, Likenesses, and Paying College Athletes 76 Ed O’Bannon vs. NCAA 76 Background on Ed O’Bannon. 76 Background on O’Bannon vs. NCAA. 77 Correlation of NCAA Violations to the O’Bannon Lawsuit. 79 EA Sports and Use of Student-Athletes’ Likenesses. 80 viii EA Sports. 80 The Lawsuit’s Progress to Trial. 81 Bench Trial. 83 Testimony. 84 Trial Findings and Pay for Play. 90 NCAA Appeal. 91 Supreme Court Petition. 94 Pay for Play Scandals 96 Southern Methodist University. 96 University of Michigan. 100 Chapter Six: Secondary Cases 106 Kent Waldrep Worker’s Compensation Suit 106 Northwestern Unionization 109 Jenkins v. NCAA 111 Summary of Cases 113 Chapter Seven: NCAA Reactions and Policy Changes 115 Amendments to Scholarships and Policies 116 Student-Athlete Catastrophic Injury Insurance Program. 116 Student Assistance Fund. 117 Student-Athlete Opportunity Fund 119 Miscellaneous Expense Account (MEA). 121 Cost of Attendance Increase. 122 Chapter Eight: Findings 125 Looking Again at Amateurism 125 Board of Regents of Oklahoma v. NCAA. 125 White v. NCAA. 127 Ed O’Bannon v. NCAA. 128 A New View of Benefits 130 Managing Amateurism in Public 132 Chapter Nine: Personal Reflections 136 Cultural Significance 136 Reflections 140 APPENDIX 152 REFERENCES 158 ix LIST OF TABLES Table 1: Summary of Cases ........................................................................................................ 114 x LIST OF FIGURES Figure 1: Growth of Student Assistance Fund ............................................................................ 119 xi Chapter One: Background, Research Questions, and Significance Background to Study Pay for play is a phrase used by many media outlets to describe a system of college athletics where the student-athletes at Division I colleges and universities can be paid for their participation in their college sport. The underlying theme and major argument for a pay for play structure is that big time college athletics generates millions of dollars for their respective institutions; however, the athletes who are playing the sport see little to no compensation for their participation. College and university athletic administrators contend that the full scholarship offered to these athletes is enough compensation for their participation and that some athletes over-value the contribution they make to the revenue generated by their particular sport. The issue of pay for play has been a great concern to the current and ex-athletes involved, the media outlets who feel the athletes have been and are being exploited, and the college and university administrators who feel that the student-athletes should be treated as amateurs and not be paid for their play. This study is an historical analysis of the pay for play phenomenon and the legal battles that have emerged from the debate over the National Collegiate Athletic Association’s (NCAA) amateurism rule. This study will include: (a) analysis of the origins of pay for play and how it has evolved, (b) the legal battles that have taken place with the NCAA, including several key rulings by the NCAA on member institutions, and (c) how the legal battles have affected the rule of amateurism and the manner in which the NCAA handles infractions and violations of the bylaws. My motivation for conducting this research is based on my current role as a professional within a major research university where I work with athletes and college athletics, requiring me 1 to interpret NCAA policy as it pertains to intercollegiate athletic finances. I am also an avid fan of college athletics so my interest in this subject matter dates back to watching college athletics as a child. The idea of a system of pay for play as a structure for college athletics has interested me since I began working with college athletics and especially in recent years as the topic has gained momentum. Judge Wilkin (2014) wrote in her decision on the O’Bannon v.
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