National Collegiate Athletic Association

Comment

June 16, 1997

Guest editorial -- Ease racial disparity with disputed position

BY TERRY DON PHILLIPS
Oklahoma State University

As we are all aware, the United States district court in Kansas City held that the NCAA's designated restricted-earnings position with its salary cap was in violation of the Sherman Antitrust Act.

The court's decision held that there was no procompetitive reason for the restraint on coaches' salaries and that the rule, therefore, was in effect price-fixing.

However, under the court's reasoning, it must be noted that there can be times and circumstances under which a restricted-earnings designation can withstand legal scrutiny.

While the purpose of this opinion is not to discuss the legal reasoning of the court's decision, it is important to emphasize the basis upon which the court made its decision. The court applied a "rule-of-reason" analysis to determine whether the restricted-earnings position violated antitrust. A rule-of-reason analysis allows the court to determine if there is any justifiable (procompetitive) reason for the salary restraint.

The NCAA argued that there were justifiable (procompetitive) reasons for the restriction. Specifically, the NCAA argued that the restriction was necessary in order to curtail costs that would serve to maintain the viability of athletics programs ("Sports Product Market") and/or provide opportunity for young, inexperienced coaches to enter the profession ("Coaches Service Market").

The court held that it would look at the reasoning only as it impacted the Coaches Service Market because that was the relevant market that was affected by the salary restraint. Therefore, the court had to consider whether the restricted-earnings designation really did help younger, inexperienced coaches enter the market for the service of coaches.

The NCAA failed to convince the court that there was a question of fact on this issue. Had the NCAA been able to effectively demonstrate factually that the restricted-earnings designation put young, inexperienced coaches into the market, then there would have been a strong likelihood that the NCAA could have defeated a motion for summary

judgment.

With this in mind, we do not need to give up on the continued use of the restricted-earnings designation to achieve procompetitive purposes in the Coaches Services Market. Rather, we need to consider using the designation to address the apparent inequity with minority opportunity to enter the coaching profession. There simply are too few minorities coaching relative to the number of minority student-athletes in our system. An additional strategy to correct this disparity needs to be developed, and the restricted-earnings designation may be a part of such a strategy.

Let's review the statistics regarding minority coaches. Data taken from the years 1990 through 1994 show that across all NCAA divisions, African-American student-athletes compose 25.4 percent of student-athletes in all sports. Additionally, African-Americans compose 48.1 percent of all student-athletes in football and men's basketball.

However, in contrast with the percentage of African-American student-athletes, there are only 3.13 percent of head coaches in all sports who are African-Americans and only 9.9 percent of assistant coaches in all sports who are African-Americans. Percentages appear to be as problematic for other minorities.

When reviewing employment law to determine if specific practices and/or policies produce a disparate impact, minority representation for coaches should approximate the percentage of minorities in the relevant applicant pool. Therefore, if you assume that qualified coaches should come primarily from those who participate in athletics, then it becomes very clear that there is a disparate gap between the number of African-Americans in coaching and the number of individuals in the pool from which coaches should be drawn. This disparity results in a dilution of the market for the services of minority coaches.

The use of the restricted-earnings designation to provide minority entry into the Coaches Services Market could serve to decrease this disparity and clearly serve the best interests of NCAA institutions. Accordingly, this would be procompetitive because it would enhance the ability of NCAA institutions to recruit and select qualified minority coaches. This being the case, the restricted-earnings designation would not be violative of antitrust.

I recognize there may be other arguments, such as equal protection and Title VII, that may be brought against this proposal. However, due to the pervasive and distinctive nature of this dilemma at NCAA institutions, viewed in the body politic, opportunity exists to prevail.

Therefore, I believe we should thoughtfully examine using the restricted coaches' designation as an opportunity to increase the number of minority coaches into the Coaches Services Market. I encourage the NCAA Minority Opportunities and Interests Committee to legally scrutinize these thoughts for a determination of whether or not this proposal has merit.

Terry Don Phillips, a licensed attorney, is director of athletics at Oklahoma State University.

Comment -- Short-term pain means long-term gain

BY MILTON E. RICHARDS
STATE UNIVERSITY OF NEW YORK AT ALBANY

In 1982, one of my first tasks as a young, inexperienced athletics administrator was to implement gender equity at Temple University.

My actions were necessary since Temple was in the process of settling a Title IX discrimination lawsuit filed by Rollin Haffer, a varsity badminton player. To understand her suit, one first must consider the history of Temple's athletics program. There were two distinct programs for men and women. The men's program operated under NCAA guidelines (women were not part of the NCAA then), and the women's program was governed by the guidelines of the Association of Intercollegiate Athletics for Women, which is no longer in existence.

The philosophical differences in these two organizations made conflict inevitable. A senior coach within the department pointed out that the AIAW was much more recreational in nature. The AIAW did not provide funding for championships; thus, for lack of funding, great teams did not go to championships while less-than-great male teams always went since the NCAA provided funding for travel to championship events.

Problem remains

Although women's athletics became part of the NCAA and participation by women has increased, the problem is far from solved. The Supreme Court's decision not to review the Brown University case has created a new problem for men's nonrevenue sports: proportionality.

Based on a lower court's ruling, the gist of Title IX interpretation is that a school's athletics program must mirror the undergraduate student population's male-to-female ratio. If 50 percent of the student body is female, 44 to 50 percent of the athletes must be female.

This ruling suggests that schools that sponsor football must field two to three more women's teams than men's teams in order to comply with proportionality since an average football squad usually consists of 115 members. No women's team is this large, hence the need for additional women's teams.

As institutional support for athletics declines and female athletes become more aggressive, athletics administrators are being forced to discontinue male nonrevenue sports and add women's sports. This has caused a flood of litigation and protest by men's sports advocates, citing reverse discrimination. To date, courts have not been sympathetic to the plight of these athletes.

Attitude adjustments needed

While proportionality appears to be here to stay, I believe what needs to change are the attitudes of many of my colleagues on both sides of the issue.

Some time ago, while I was playing golf with a high-profile coach, I was told we were "not standing up to women" and that we were "destroying men's athletics" to accommodate women's athletics. My response was that he did not understand the issue, that I have a daughter who should receive the same opportunities my son does if she wishes to participate in intercollegiate athletics. He paused and said, "Maybe you are right." A small victory for women's athletics.

On the other side of this issue, many advocates for women's sports wish to destroy football and do not mention the revenue generated by men's athletics, in particular men's basketball and football. Where would the NCAA membership be without the billion-dollar television contract for the Division I Men's Basketball Championship? At Kansas State University, while I was director of athletics, a majority of the funding for all of our teams came from revenue generated by the football and basketball programs. If the football and men's basketball programs did not win and draw crowds, funding was not available for our other teams since state support was insignificant.

In my view, the courts are not the answer to this problem. I believe a special commission under the NCAA should be formed to develop a policy on gender equity. While this has been done before, I believe this commission should not include high-profile public figures who have clear agendas. It should consist of presidents, coaches, athletics administrators, student-athletes and faculty athletics representatives who believe in equality but have no agenda other than fairness. People who wish to destroy football and those who feel no need to adjust the scope of football need not apply.

Three years ago, the State University of New York at Albany dropped three minor men's sports, added women's sports, capped men's rosters, increased women's rosters and equalized budgets. We found ourselves in court, ridiculed by the local media and ostracized by some alumni. I even received death threats. Ultimately, a five-judge appellate court ruled unanimously that our actions were correct, and the suit against us was "meritless."

Today, our program is gender equitable, our students graduate and achieve academic honors, and our teams are very competitive. These things happened as we upgraded our program from Division III to Division II and expanded campus recreation without an increase in state support for athletics. These steps were possible not because of court intervention but because of an established philosophy of equal opportunity for men's and women's athletics that was accomplished with the cooperation of university administration, athletics administration, faculty, coaches, students and staff.

To achieve gender equity, tough decisions must be made. Short-term pain will lead to long-term gain. Gender equity is not only the law, it is the right thing to do. I encourage my colleagues on both sides of the issue to "circular file" their agendas and work together so everyone will benefit.

Milton E. Richards is director of athletics at the State University of New York at Albany.

Opinions -- Coach: Comparisons of spring and fall football not valid

Wilt Browning, sports editor
Asheville Citizen-Times

"The NCAA turned the clock back and actually did something charitable by lifting the ban on part-time jobs, just as long as athletics departments tracked it all to keep the thing from turning into a monster.

"What the NCAA fears, with justification, is that some booster, who happens to own the local car wash, for example, might pay a prized football recruit $10,000 or so for leaving streaks on windshields. That's more than some coaches get for Sunday morning football shows. But boosters will be sugar daddies and the NCAA has mounds of evidence to prove it.

"A few days ago, a lot of the associate athletics directors/compliance started calling the Atlantic Coast Conference office about how difficult it is likely to be tracking as many as 300 athletes by job descriptions. Nobody at the Convention had thought about that. Now the AAD/Cs want a one-year moratorium on the thing.

"Which is understandable. What the long history of the NCAA has taught us, if anything, is that coaches will cheat. The NCAA knows this and that precisely is why the NCAA rulebook is so thick and legalistic. The rule-makers try to figure ways of making it tough on the cheaters and spare no ink in doing it.

"The whole thing is a slap in the face of college athletics. It makes a mockery of ethics and fairness. We all ought to be incensed that the very institutions that are supposed to be raising our next leaders are filled with rascals, cheats and liars.

"Tell you what, it's not that difficult to stop the cheating. You don't need a rule book that only Geraldo can figure out. When it comes to penalties for cheating, the NCAA needs just one:

"A coach who cheats and gets caught doing it gets fired, no questions asked. And no other card-carrying NCAA member institution may sign him on.

"My guess is that that would put an end to it, and life would be more simple. And athletes could have as many $8.50-an-hour jobs as they want. Name one high-profile football or basketball coach willing to chance losing his perks -- shoe contracts approaching seven figures, income from summer camps, free cars, houses, country club memberships and such, not to mention a salary that rivals and frequently exceeds that of the chancellor.

"That's what it comes down to, money. Money and greed. The coaches have it, the players want a bit of it, and colleges and universities that are supposed to be sanctuaries for higher thought seem unable to figure it out.

"Maybe the solution is just too simple for these complicated minds, something as simple as: One strike, coach, and you're outta here."

Academics and athletics

Editorial
Austin-American Statesman

Discussing a failed attempt by a member of the Texas Legislature to require that student-athletes be required to achieve academically at the same level as non-athletes:

"There is a faint hope that the hypocrisy of Division I sports has been so exposed that a more courageous university or legislature will take the lead to end the sham. If the better state college programs like California, Michigan or Virginia, or even the elite private college programs like Stanford, Northwestern and Duke, would break the cycle, the other great universities eventually would be shamed into following.

"College sports are fabulous and in every sport there are true student-athletes the best colleges can be proud of. But they have become so popular that money and greed have conspired to make them professional in everything but name. Those millions have caused great educational institutions to sanction the dishonesty and corruption of their athletics departments.

"College athletics would not die were athletes required to meet admissions standards. They would suffer financially for a time, but not die. Athletes uninterested in the classroom would gravitate to the minor leagues and universities again could point to their student-athletes without choking in shame.

"Texas missed its opportunity to end the deception and bring integrity back to the colleges and their sports programs. It will be left to some other state or university to end this moral bankruptcy and start the march back to honesty in college athletics."