Inn of Court Remarks
February 15, 2016
Thank you, Carmen, for this invitation and William, for that gracious introduction. This is my second visit to the Inn of Court, the first was in April of 2010, just two years after I became president of the University of South Carolina. So I will take it as a positive sign that you've welcomed me back.
The Inn of Court has such a rich history — with only four Inns of Court in London — the Lincoln's Inn (1422), Inner Temple (1388), Middle Temple (1388) and Gray's Inn (1569). I am so proud that the University of South Carolina School of Law has been given the unique opportunity to be affiliated with The Honourable Society of Gray's Inn. It's been a life-changing experience for our scholars who have studied there.
I'm also very proud that William Hubbard received the 2007 American Inns of Court
Professionalism Award for the Fourth Circuit. He, of course, is legal royalty and
I confess that I lived and traveled, virtually and vicariously, with him during his
amazing journeys as ABA President in 2014-15.
Let's agree, right away, that college sports is big business. In the Midlands alone, a home football game brings in more than $6 million to the local economy as hotels, restaurants and nightlife spots welcome Gamecock fans and their rivals to town. This isn't just a Columbia story — this is happening in university cities, both medium and large, across the United States.
This evening, I will tackle (pardon the pun) the glorious but complicated world of intercollegiate sports, and leave room for dialogue, discussion and, if merited, debate.
Let's agree, right away, that college sports is big business. In the Midlands alone, a home football game brings in more than $6 million to the local economy as hotels, restaurants and nightlife spots welcome Gamecock fans and their rivals to town. This isn't just a Columbia story — this is happening in university cities, both medium and large, across the United States. These communities, especially those that house a Division 1 school, reap the financial benefits of college sports, as do the universities represented on the players' jerseys.
On the merchandise side, nearly $5 billion (with a capital 'B') is spent annually, nationwide, on college licensed merchandise for everything from tee-shirts to dog bandanas to garden gnomes, not to mention hats, diapers, fleece, video games and pet paraphernalia. Why people would dress up a dog like a chicken, I don't know, but I'm not complaining. Of course, royalties generated from these sales are returned to the institutions to support student and campus projects. Of the 20 colleges that top the merchandise sales list, Carolina most recently came in respectably at 16. No. 1 was the University of Texas at Austin.
Sports also stimulates philanthropy. (I thought of using the word "generate" because it is fairly direct.) Of our extremely successful Carolina Promise campaign, which brought in $1,043 billion over eight years, $250 million was contributed for athletic endeavors. But beyond that, many who gave to our libraries, scholarships and other academic programs were also encouraged by our athletic success.
There are, however, "flies in the ointment." With competition from digital platforms, huge flat screen TVs — with seat license fees, high tickets, parking and hot dog prices, (not to mention we don't sell beer at Williams-Brice), all is not as well as the aforementioned statistics might have you believe.
And on top of those challenges, there is a wave of litigation that commenced roughly a decade ago, as well as increased government interest in the enterprise of college sports, notably from Senators Clair McCaskill and Cory Booker. Senator Booker played football (tight-end) at Stanford (BA '91, MA '92, Rhodes Scholar '94 and Yale Juris Doctor '97). We will review the most pertinent examples in just a few moments.
But first ... how did this enterprise begin?
Historically, the rise of college sports is unique to the United States. In the early days of academe, the term "student-athlete" didn't exist. In fact, in the early nineteenth century the administrators at Princeton felt that any form of athletic activity on campus was beneath the status of their students. Harvard got things started in 1826 when they imported gymnastic competitions from Europe. Not to be outdone, Yale, Amherst, Williams, Brown, Bowdoin and Darmouth got busy building their own gymnasiums ... all outdoors by the way.
It wasn't until 1852 that an actual intercollegiate event took place. It was held in New Hampshire on Lake Winnepesaukee. The contestants? Members of the Harvard and Yale rowing teams. And, guess what? They had a sponsor — the Boston, Concord & Montreal railroad. And so it began ...
By the way, as a Yale man, I'm disappointed to tell you that Harvard's Oneida beat Yale's Shawmut by about two lengths. The prize: a pair of black walnut, silver-inscribed trophy oars awarded by General Franklin Pierce who, in the following year, would become America's 14th president. (Prior to the intercollegiate event, he had been both a U.S. Congressman and a Senator from New Hampshire, had served as a U.S. Attorney for N.H. and as Brigadier General during the Mexican-American War. In 1852, he was campaigning for and became president in 1853.)
Intercollegiate competition soon became an unvarnished effort to assert school superiority in all things — academia and sports. By 1859 the first baseball game was played between Amherst and Williams. And in 1869, Rutgers and Princeton held the first football game, while the all-female Vassar College fielded two student baseball teams in 1866. The first women's intercollegiate basketball championship was not held until 1896, that was between Stanford University and the University of California at Berkeley. Title IX was signed by President Richard Nixon in 1972.
Students formed the Intercollegiate Football Association in 1876 as a way to establish agreed upon rules. That's how it stayed until 1905. That season 18 football players died and 149 were seriously injured. NYU's Chancellor stepped in to lead the charge for rules reform and the Intercollegiate Athletics Association of the U.S. (IAAUS) was formed. This was the precursor to the NCAA.
In the decades that followed, colleges and universities put athletics under the physical education departments and coaches were given academic appointments. It became clear that better university oversight and governance of intercollegiate athletic competition was needed and the best thinking of the day was that oversight would be provided, "by committees consisting of administrators and presidents to provide rules to balance sports and academics." The "committees" resulted in the creation of conferences: Big Ten (1895), Ivy League (1898), Big Eight (1908), and the Pacific Ten (1915). The SEC was formed in 1933 and the ACC in 1953.
The National Collegiate Athletic Association or the NCAA, was formed in 1906 to "draw up competition and eligibility rules for gridiron football and other intercollegiate sports." But it didn't really have much power to enforce rules until the 1940s.
This brings me to the modern era:
Today, the NCAA functions as a general legislative and administrative authority for men's and women's intercollegiate athletics and formulates rules of play and eligibility criteria for athletes. Rule and policy changes work their way up from the membership and are ratified at an annual convention in January. Issues that tend to receive the most attention include initial eligibility standards, ongoing eligibility of individual athletes and teams, and academic integrity and enforcement of rules.
The NCAA also supervises regional and national contests and conducts nearly 90 national championships in two dozen sports. Its 2015 annual revenue was approximately $91.3 million, with about 92 percent of its revenue coming from March Madness under its contracts with CBS and Turner Broadcasting.
For all but the power conferences, NCAA distributions comprise the major revenue source for university athletics in the U.S.A. Importantly, the NCAA does not oversee or control, in any way, postseason football bowl competition.
In 1973, the NCAA reorganized into three division. I served as the chairman for Division
1 in 2016 and as a member of the Board of Governors. Today, its members include 1,121
colleges and universities, 99 voting athletics conferences. Five of the conferences,
sometimes referred to as the "power conferences" representing 65 universities, are
organized as a subdivision of D1.
On the other hand, I and others, believe that when academic values and priorities are observed and enforced, student-athletes can thrive both in the classroom and on the playing field while receiving superior life and professional skills and preparation.
Famously, they were granted "autonomy" over several areas when agreement could not be reached between these conferences and all others ... mainly over the authority to increase the grant-in-aid payment to scholarship student athletes ... and I'll have a little more to say about that shortly. There are also 39 other organizations affiliated with the NCAA including international, Olympic and high school athletic organizations. Nearly a half million college athletes make up the 19,500 teams that send more than 54,000 participants to compete each year in the NCAA's 90 championships in 24 sports across three divisions.
Although we've come a long way, one thing is very clear, the Princeton viewpoint from the early eighteenth century is alive and well in those who believe that intercollegiate athletics and the mission of higher education are incompatible. On the other hand, I and others, believe that when academic values and priorities are observed and enforced, student-athletes can thrive both in the classroom and on the playing field while receiving superior life and professional skills and preparation.
So why is there such scrutiny, such enmity, such ... disdain for the work of the NCAA? Two reasons, primarily I think. The first is that fans and the general public remain fiercely loyal to their universities, but not to the NCAA. There is no direct constituency apart from universities themselves. The second is the spate of legal challenges and the visibility they have received in the press from writers like Joe Nocera of the New York TImes and many others.
Legal challenges, for the most part, have been initiated from former student-athletes, and some current athletes as well, who feel that the financial benefit to them has been modest relative to universities and other interests.
That brings us to the Ed O'Bannon lawsuit.
This is an interesting and complex case which began as a lawsuit centered on the right of publicity — arguing that current and former players should be compensated when their name, image or likeness is used in video games. However, it later grew into an antitrust case. Part of it played out during my time as both a board member and also as the chairman of the NCAA's Division 1.
Ed O'Bannon is a former UCLA basketball player who had been a starter on the university's 1995 national championship team. In July of 2009, after seeing his likeness from the 1995 championship team in a video game, O'Bannon filed a federal lawsuit against the NCAA and the Collegiate Licensing company over "whether Division 1 men's basketball and football players ought to be compensated for the commercial use of their names, images and likenesses."
A key ruling cam in August of 2014, by Judge Claudia Wilken of the 9th Circuit, U.S. District Court for the Northern District of California. She wrote that the NCAA had violated antitrust laws by not allowing athletes to be paid for the use of their names and likenesses. This ruling would have allowed, but not required colleges to pay players about $5,000 each year beginning in the fall of 2014. The payments would have been capped at that amount and held in a trust fund until the students completed their athletic eligibility. I testified in this trial.
As the case moved forward on appeal, the NCAA held the position that the changes Wilken sought would interfere with the NCAA's stated goals of promoting education and the college experience. In the meantime, in January 2015, the NCAA began allowing institutions to pay player's full cost of attendance, not just the amount of a scholarship. The 65 universities in the autonomy subdivision of D1 all provided additional aid in the form of a stipend that covered the difference between a scholarship and various expenses such as food, laundry and travel.
By September 2015, a 73-page decision on the O'Bannon case came from the U.S. Court
of Appeals for the Ninth Circuit with a favorable but not completely exculpating ruling.
The three judge panel consisted of Judges Sidney Thomas, Jay Bybee and Gordon Quis.
I continue to believe that the best way to help our students be successful in college and in life is by providing an education that also includes benefits for our students who play sports — such as scholarships, healthcare, insurance and in many cases, the full cost of attendance.
On September 30, 2015, a coalition representing 31 of the largest conferences in college sports issued a statement in reaction to the ruling indicating their pleasure with the 9th U.S. Circuit Court of Appeals ruling in the O'Bannon case to the extent that it reversed the trial court's ruling with respect to deferred payments to student-athletes in the amount of $5,000. The ruling concerning cost of attendance reflects a change in NCAA rules previously implemented for this academic year, as the Court noted.
There were other elements of the decision that we agreed with and others that were disappointing. I continue to believe that the best way to help our students be successful in college and in life is by providing an education that also includes benefits for our students who play sports — such as scholarships, healthcare, insurance and in many cases, the full cost of attendance.
Both sides filed a certiorari ("cert") motion requesting the case be heard by the US Supreme Court, however, in the months following Judge Scalia's death, the Court denied the petition to review. Consequently, the status quo was allowed to remain in force. This means that the amateurism model survives, but in letting a lower court's ruling stand, the court also left that model open to further scrutiny and did not settle, once and for all, whether the NCAA does or does not violate federal antitrust statues relative to competition. This set the stage for two other antitrust lawsuits to move forward: Alston v. NCAA and Arrington v. NCAA.
Just last week I received a NCAA Communications Brief explaining that a fund had been established to settle monetary claims for student-athletes. Eleven Division 1 conferences and the NCAA agreed to create a nearly $208.7 million fund for the benefit of current and former Division1 men's and women's basketball and Football Bowl Subdivision football student-athletes to settle the monetary claims portion of the grant-in-aid class-action lawsuit. The NCAA Board of Governors determined the settlement will be funded entirely from NCAA reserves, and no conference or member school will be required to contribute.
The settlement is subject to approval by the court. So I have no doubt that, as a nation, as college president, as attorneys, as judges, we will continue to refine and define the role of colleges and players in intercollegiate sports.
This brings me to: The Gamecock Student-Athlete Promise: A Championship Experience.
Our Mission Statement
- Full cost of attendance
- Scholarship commitment to student-athletes
- Gamecock lifetime degree guarantee
- NCAA exceptional student-athlete disability insurance premiums
- Access to the NCAA Student-Athlete Opportunity Fund
The Promise: A Commitment to Academic Excellence
- Academic Support
- Dodie Anderson Academic Enrichment Center - "The Dodie"
- Prep. 100: Summer bridge program for incoming freshmen.
Commitment to personal and career development
- Preparing student-athletes for life
- Gamecock career network
- Team Gamecocks giving back
- Respect and dignity for all - Carolinian Creed
Commitment to athletic excellence
- The nation's leading coaches
- Award-winning athletics facilities
- National media attention
- Apparel and equipment
- Gamecock Country
Comprehensive healthcare for enrolled student-athletes
- Comprehensive healthcare for scholarship and non-scholarship student-athletes
- Concussion treatment
- State-of-the-art athletic training rooms; rehabilitation equipment
- Sound mind: mental health
- Sound body: leaders in sports nutrition
- Innovative sport-specific strength and conditioning programs
- Cutting edge sport and healthcare technology
A vital voice
- Student athlete advisory committee (SAAC)
Intercollegiate sports connect us, unite us and challenge us. They also come with great responsibilities which we will continue to address.
So, from a rowing battle on Lake Winnepesaukee to high stakes College Bowl games, intercollegiate sports remain an integral part of college life. It's hard to imagine college life at the University of South Carolina without our teams, our fans, and most importantly, our student-athletes.
Intercollegiate sports connect us, unite us and challenge us. They also come with great responsibilities which we will continue to address. I have no doubt that legal issues will continue to evolve and I know that you and I will both stay tuned.