If the late Supreme Court Justice Byron “Whizzer” White were here to see the predatory greed and market panic in college football, he would bring down a gavel on someone’s head. Then he’d say, “I told you so.” White foresaw it all, the cannibalizing and the cowardly defections for TV cash, and the gummy toothlessness of the NCAA. He predicted it 27 years ago in a case called NCAA v. Oklahoma Board of Regents, which is compulsory reading for those who wonder how we got to this point.
It’s a rich irony that Oklahoma is sweating the chaos caused by TV money, given that it set the chaos in motion in the first place. In 1984, Oklahoma, joined by Georgia, sought to break NCAA control over college football by suing all the way to the highest court for the right to negotiate its own TV deals, and won.
Citing restraint of trade, the court stripped the NCAA of much of its centralized power. A quarter-century later, the Big 12 has been weakened, the entire college football structure destabilized, and Oklahoma is threatened because Texas, with its powerful Longhorn Network deal, is acting so rapaciously, running “roughshod” and making its own rules. Well, where do you think Texas got the idea? It’s pretty entertaining that Oklahoma, which asked for this landscape, is crying for some sort of protection from it.
But White could have told Oklahoma it might not like a world in which there was no overarching NCAA authority. In fact he did, in a prescient dissent.
“By mitigating what appears to be a clear failure of the free market to serve the ends and goals of higher education,” he wrote, “the NCAA ensures the continued availability of a unique and valuable product, the very existence of which might well be threatened by unbridled competition in the economic sphere.”
The court was making a terrible mistake, White warned, by in effect “subjugating the NCAA’s educational goals . . . to the purely competitive commercialism of [an] ‘every school for itself’ approach to television contract bargaining.”
Back then White was virtually alone — all of his bench colleagues disagreed with him except William Rehnquist, perhaps for good reason. The NCAA of a quarter-century ago was a tyrannical monopoly under a dictator-president, Walter Byers, who created a doorstopper of a rule book and even decreed what time NCAA staffers had to close their drapes. From 1951 to 1984, the NCAA not only controlled TV rights fees, but limited schools to no more than six TV appearances in two years. This made bitter enemies of the large football powers. During the court case, then-Oklahoma President Bill Banowsky actually told Byers he “reminded him of J. Edgar Hoover.”
But White’s dissent is great reading anyway, because it’s so clearly anticipatory. If the NCAA was a monopoly, he also saw it as a bulwark against today’s ruthless, distrustful dealings. White had played both college and pro football; after a career as an all-American halfback at Colorado, in 1938 he signed with the Pittsburgh Pirates (now the Steelers) and led the NFL in rushing. Take away the NCAA’s power to restrain, White contended, and there goes any demarcation of amateurism. In the race to remain competitive, every school would inevitably grow ever more professional in outlook, unable to “confidently enforce its own standards” since it couldn’t trust fellow schools to do the same.
Listen to the arguments of the Oklahomas and Georgias now, and indeed you can hear the unmistakable ring of the cash register. Fred Davison, Georgia’s president at the time of the court case, didn’t bother to disguise his real interest. He sought an end to “a tyranny of the majority to impose itself on the commercial enterprise” of a handful of big-time football schools.
What really drove Oklahoma and Georgia crazy was that small schools received more in rights fees than they would in a free market, while the football powers received less. They had to share spoils with nearly a thousand schools that made up the NCAA majority. The Hofstras got a cut of Oklahoma’s TV checks.
But, White asked, so what? It was a small price to pay, he suggested, for holding off rampant commercialism at the door. Profit- and load-sharing was “an essential aspect of maintaining some balance of strength among competing colleges and of minimizing the tendency to professionalism in the dominant schools.”
White was probably naive to argue that too much commerce compromised the basic educational purpose of college football; frankly, that has been compromised since the 1880s. But he was not naive about the distorting power of TV money, or his suspicion that the application of free-market principles to the college game could actually have anti-competitive and unfair results.
The NCAA, he pointed out, acts in all sorts of restricting ways we don’t accept from a normal business. We give it the power to limit scholarships, the pay of athletes and the number of coaches, establish minimum academic standards and regulate recruitment, length of eligibility, squad size, practice schedules, etc. That’s all for a simple reason: to foster fairness, some semblance of ethical restraint.
If it’s okay to restrict athletes from making money for playing on TV for ethical reasons, then surely we should restrict the universities that rake in multimillions, he wrote. Remove restrictions, and “unlimited [TV] appearances by a few schools would inevitably give them an insuperable advantage over all others and in the end defeat any efforts to maintain a system of athletic competition among amateurs who measure up to college scholastic requirements.”
Was White right? Not about everything. His faith that the NCAA could decently self-regulate was probably misplaced. It’s sort of like saying the oil industry is in need of restraints — and letting Exxon Mobil and Shell make their own rules.
Still, White’s dissent is worth looking at because it makes an important point in ringing language: The game needs governance. Without some form of effective oversight, whether by Congress or some other body, it’s the mess he predicted.
One thing is impossible to miss in reading White’s opinion: The NCAA he wrote about, the authority so strong that it took a Supreme Court decision to overturn, is gone. Long gone.