BY RITA BEAMISH B.A. ’74

SCU TACKLES
THE ETHICS OF SPORTS

Santa Clara Law teams up with the SCU Athletics Department and the Markkula Center for Applied Ethics at SCU to create a new institute focused on sports ethics.

Santa Clara University Broncos Junior Forward Keigo Kameya (12) battles Stanford Cardinals Senior Defender Hunter Gorskie (3) during the Santa Clara University Broncos Men Soccer game at Stanford Cagan Stadium in Palo Alto, CA on September 16, 2012. The Broncos won the game 2-1.

Harry Edwards calls it the “collegiate athletic arms race,” a furious competition that reaps billions of dollars from the raw talent of young athletes, consuming schools, families, coaches, boosters, and purveyors of the commercialism running rampant through the amateur sports universe.

College sports programs have become “too big to derail,” with ramifications that burrow deep into society, contends Edwards, a former San Jose State athlete and former University of California, Berkeley, sociology professor who has been an advisor on diversity for the three major sports. At a recent Santa Clara University symposium, he and other participants ran down a litany of ills percolating just beneath the daily college scores and play-by-plays: High school hopefuls bulk up to the size of Super Bowl linemen. Million-dollar coaches and conference commissioners hold sway. Head injuries pervade beneath the radar. Under-the-table payments flow between agents, players, schools. The allegations of sexual misconduct by Penn State coach Jerry Sandusky are only the extreme, a “perfect storm” created by a runaway system of sports programs that are seemingly untouchable, with no one willing to challenge them, Edwards told the SCU Symposium on Sports Law and Ethics in Higher Education.

At the same time come questions about exploitation of young athletes, whether by companies parlaying their images into video games, or colleges that wink at their academic lapses, or an National Collegiate Athletic Association system Santa Clara Law teams up with the SCU Athletics Department and the Markkula Center for Applied Ethics at SCU to create a new institute focused on sports ethics of sports that forbids them from professional representation in contract talks with potential future employers. Grueling training and year-round commitment make many schools’ athletic programs amateur in name only, a reality that has prompted calls to upend tradition by paying the players. This unsettling backdrop for today’s amateur sports tableau spills increasingly into the courtrooms.

It all adds up to an ethical morass in the college sports universe that Santa Clara has decided to take on through its new Institute of Sports Law and Ethics. The institute, formed to look at both professional and amateur sports, was launched jointly by the Markkula Center for Applied Ethics, the School of Law, and the Department of Athletics and Recreation. Its goal is to highlight ethical issues across the sports genre and encourage standards where none currently exist.

“What this represents is an attempt by Santa Clara University to meld the field of sports law with the university’s commitment to do ethical reflection,” said Kirk O. Hanson, director of the Markkula Center. “There’s a perception of a real crisis in the role of sport in American society and the role of sport in college life.”

“Sports has lost its moral compass. Amateurism does not exist anymore. Who better to re-create that moral compass than Santa Clara.” —RON KATZ, ABOVE, CHAIRMAN OF ISLE AND A SPORTS LAWYER AT THE LAW FIRM OF MANATT, PHELPS & PHILLIPS, LLP.

SCU Institute’s Challenge

The Institute is taking up the topic of college sports ethics to kick off its work, said Ron Katz, a prominent sports-law attorney and lecturer at Santa Clara Law who is chairman of the Institute. He announced at the Sports Law and Ethics symposium in September that the Institute is convening a task force to delve into the ethics of college athletics. The task force takes no position at the outset but aims to stake out a national leadership role, with a report next year that will include recommendations for ethical standards.

“Sports has lost its moral compass. Amateurism does not exist anymore. Who better to re-create that moral compass than Santa Clara,” Katz said.

“Ethics is part of our mission here,” added Dan Coonan, SCU’s director of athletics. “There are many sports law institutes across the country but there’s only one that has an ethics component, and that’s Santa Clara. It’s what the university does, and does really well, and it’s the type of thing we should be doing here.”

The School of Law’s involvement is apt not only because of its commitment to SCU’s ethics mission, said Dean Donald Polden, but because the pervasiveness of sports law makes it likely that law graduates at some point in their careers will be asked to represent, advise, or inveigh for or against clients or interests confronting sports-related ethical challenges. “A lot of these issues cut across all areas of sports,” he said.

The symposium drew more than 200 participants to a day of intense panel discussions featuring former athletes, college administrators, NCAA officials, sports law attorneys, academics, and other experts.

An Amateur World Worth Billions

Much of the discussion revolved around the ongoing controversy rooted in the enormous money that permeates amateur sports—namely basketball and football—and whether student athletes who generate billions of dollars in TV deals and commercial revenue for the sports industry should themselves be compensated—the pay-to-play debate.

Most schools, Santa Clara included, do not make money from their sports programs. “A small sliver” of the 300 in Division 1 make money, economist Jonathan Orszag said. But the stakes in college athletics are irrefutable in an environment where the NCAA and powerhouse schools make lucrative TV deals to broadcast their games, video games recreate college play, and marketing, promotional, and merchandising deals reap millions.

From a legal standpoint, are the players actually “employees,” deserving of a paycheck? Should they make money from marketing their own images, especially when others trade on those same images? Is it fair that they can’t enlist lawyers and agents in contract talks that are crucial to their professional futures, a policy that has attorney-client implications?

And, as Hanson added, “Has sports become so important in college culture that we no longer protect the student athlete and we no longer require them to be educated?”

New York Times columnist Joe Nocera told the symposium that after in-depth investigation he has concluded, “Amateurism is little more than a pretense to justify a cartel, a cartel that generates billions of dollars on the backs of a free labor force.” He noted that some players meanwhile can barely read, students in name only. Among proposals emerging to pay the athletes, Nocera advocates a minimum salary for all of them and talentbased contracts for those who rise to the top.

Intensifying the drumbeat for major reforms, historian Taylor Branch in a lengthy article last year in The Atlantic titled “The Shame of College Sports” compared college athletes to colonial subjects who are unjustly deprived of their constitutional rights to due process.

The Off-Season Anachronism

Above, David Drummond B.A. ’85, Senior Vice President Corporate Development at Google, played varsity football during his undergrad years at SCU.

Informing the debate is the dramatic change in the life of the college athlete.

“It isn’t the same as the athlete of 20 years ago where you had a season of sport. There’s no such thing as an off-season. It’s a 24-7 athlete,” said Brent Jones, a former Broncos football player who went on to win three Super Bowl rings with the 49ers.

Jones came down on the side of “some approach to acknowledging the athlete’s time and effort in the revenue generating sports.”

On the other side, opponents of pay-for-play argue that students have the choice to play sports or not; that they are compensated with invaluable training and exposure to future potential employers seeing them play on TV; and that they reap the most valued compensation of all—a college education that for many of them would be unattainable if not for their sports scholarships.

Critics say that argument is muted when athletic demands are so consuming that players can’t take advantage of college experiences like study abroad programs, campus activities, nonathlete relationships, or part-time jobs that would keep them from coming up short for everyday necessities.

Yet surveys show that the athletes themselves are happy with their college experience overall, said Josephine Potuto, a constitutional law professor at the University of Nebraska who has served on NCAA committees. A survey she conducted for the NCAA in 2006 and similar follow-up studies show that some 90 percent of college athletes rate their overall college experience positively. Across gender and sport, she said, “They think what they’re getting now is worth the effort they are putting in.”¹

NCAA Vice President and Senior Advisor Wallace Renfro parsed out a distinction between the student athletes and the commercialism that makes money off them.

“To be clear, student athletes are amateurs; intercollegiate athletics is not. The enterprise itself may not be professional, but those employed to administer and coach clearly are.”

The Balm of Higher Education?

Commercialism increasingly envelops campuses beyond just athletics, Renfro noted. “Making money through commercial activity is not the bane of higher education; it is the balm for soothing the economic stress felt by higher education as government dollars decline, tuition dollars max out, and philanthropic dollars ebb and flow,” he told the symposium.

Keeping the players in amateur status is what fosters their ability to compete for attention with the pro leagues, he posited, because people have a “visceral…recognition that intercollegiate athletics and higher education share common values and that the keystone to the relationship is the student athlete who resides in both worlds.”

Semantics aside, said labor law expert William Gould, “It’s clear that college athletes are employees. The question is what does the student part mean to the equation.”

Labor law and courts have established the concept of an employee as someone under the control of an employer, but cases involving students have “muddied the waters,” said Gould, a Stanford law professor emeritus and former chairman of the National Labor Relations Board. In an often-cited 2004 ruling involving student teaching assistants who sought union recognition at Brown University,² the NLRB said they were not employees under labor law because their primary role, rather than that of employees, was to further education in an academic relationship with Brown. Gould predicted reversal of that decision, and contended it wouldn’t apply to athletes anyway because their activity is not tied to the schools’ education mission. Gould also said he anticipates more litigation testing the question of student compensation.

From a practical standpoint, the prospect of paying student athletes would present an enormous imbroglio for the many schools that subsidize their sports programs. Budget constraints, Title 9 legal complications, and questions of equity among different sports are but a few of the problems foreseen.

With some 360 students playing 19 sports, Santa Clara subsidizes two-thirds of the athletic department’s $13 million budget, according to Coonan. The university would almost certainly reject player payments, should the question arise, as not consistent with its mission, he said. SCU basketball, volleyball, soccer, and baseball games are televised on ESPNU and Comcast in deals through the West Coast Conference. The money that comes back to Santa Clara is less than $1 million, he said.

Selling a Likeness

Apart from questions about remunerating college athletes for their talents on the field, courtrooms are churning in the hot legal field of publicity rights. In a Division 1 class action lawsuit, former UCLA basketball star Ed O’Bannon and fellow plaintiffs are taking on the NCAA, Electronic Arts Inc., and the Collegiate Licensing Company over rights to their likenesses. Their suit, filed in the federal United States District Court for the Northern District of California, argues that the NCAA violates federal antitrust laws by interfering with athletes’ rights to a share of profits from use of their images in products such as broadcasts, rebroadcasts, and video games licensed by the NCAA and its member schools and conferences.

“Our case is that the NCAA and its members are acting as a price-fixing cartel,” Jon King ’92, attorney for the plaintiffs, told the symposium.

The NCAA maintains its position on the amateur status of college athletes, who the plaintiffs contend must sign a form giving the NCAA rights to use their images in perpetuity.

Two related “right of publicity” class action cases already have produced diametrically opposed rulings on portrayal of college athletes—without use of their names—in video games produced by Electronic Arts. A New Jersey federal court ruled that the First Amendment insulated the company against the right of publicity claim by Rutgers quarterback Ryan Hart. But in a separate case on the same question, a California court found that Arizona State quarterback Sam Keller properly alleged that EA had violated his publicity right. Both cases are ow on appeal.

As with the issue of paying college players for their athletic endeavors, court decisions on right of publicity cases have the potential to radically transform college sports.

For his part, Edwards believes high school students should be allowed to use agents in compensation talks with colleges, as a way of bringing some equity to a system he called “ultimately immoral.”

From left, Harry Edwards, a former San Jose State athlete and former U.C. Berkeley sociology professor who has served as an advisor on diversity for major sports; Fred Smith, Associate Athletic Director, Development, Santa Clara University; and Ronnie Lott, Hall-of-Fame NFL player who played for the San Francisco 49ers.

No Shortage of Issues

For SCU’s new Institute, these questions will fuel the effort to get people thinking about the ethics as well as legal aspects of core moral questions facing sports. College sports are just one realm providing grist for the agenda. The Institute’s future envisions explorations of questions around topics such as the performance enhancing drugs that are roiling the professional sports world (with the Bay Area prominently involved), the role of athletes as entertainers or role models, NCAA rules, health and safety in sports, and basic questions about fairness, sportsmanship, kids in sports, and more.

“Someone without any ax to grind has to address these issues. We’re going to put everything out there,” said Katz.

Patrick Dunkley, Stanford University deputy athletic director and senior university counsel, said the SCU symposium took a needed step in starting to examine ethical issues in sports and where they intersect with the law.

“Maybe people will think through these issues at a higher level and try to apply them to do the right thing by the student athlete,” he said.

“My guess is everyone walked away from this day thinking about these issues a little differently than when they came.”