Radical Reform of Intercollegiate Athletics: Antitrust and Public Policy Implications

Universities operating major intercollegiate athletic programs are heading for, if not already in, a crisis. Corruption continues to affect major football and basketball programs, exacerbated by a failure of imagination and will in identifying and deterring corruption, and by a lack of consensus on what constitutes “corruption” when football and men's basketball stars generate millions of dollars but cannot enjoy a lifestyle commensurate with many peer students. Current levels of spending are nonsustainable at many schools. Even where intercollegiate athletic programs are sustained primarily by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question why these revenues should subsidize nonrevenue sports at the expense of financially pressed classroom activities. Contrary to the NCAA Constitution, major football programs do not operate “in keeping with prudent management and fiscal practices.” This Essay sets forth an agenda for reform, explains why the agenda reflects sound public policy, and analyzes why and how the NCAA can implement the agenda in a manner consistent with the Sherman Antitrust Act. It builds upon four foundational principles: (1) prudently managed, self-sustaining intercollegiate sports are legitimate; (2) intercollegiate sports programs that are not self-sustaining have no greater claim on the surplus proceeds from the activities of other sports programs on campus than any other educational program offered by the university; (3) the equal opportunity purposes that underlie Title IX should be maintained; and (4) whatever the additional societal benefits that may result from Division I nonrevenue sports, they do not justify the cost of operating those sports, having regard for the societal benefits that can be achieved by operating these sports at the equivalent of an elite club or Division III level. Applying these foundational principles in light of the problems facing intercollegiate athletics, this Essay offers a five-part Charter of Reform for intercollegiate athletics: (I) end subsidies for men's sports at the Division I level; (II) operate sufficient women's Division I sports to provide female students with sports opportunities equal to male students; (III) offer other sports on an equal basis to male and female students, limited to financial aid only for financial need or academic merit independent of athletic ability, with significant restrictions on coaching and travel; (IV) allow all scholarships to be partial or full and reduce football scholarship totals to fifty-five; and (V) permit up to one and one-half scholarships for the most elite athletes.