National Collegiate Athletic Association |
CommentMay 18, 1998
Guest editorial -- Settlement rumors not grounded in fact
BY SAMUEL H. SMITH On May 4, a 10-person jury delivered a verdict that for the moment ended speculation about damages the NCAA and intercollegiate athletics would have to pay in what has come to be known as the restricted-earnings coaches case.
The court automatically trebled the damages to $66.7 million, as is required in antitrust cases. Also, defendants in such cases are required to pay all attorneys' fees plus any interest as specified by the court. On May 7, the NCAA Executive Committee announced that it would appeal the verdict. Much has been written in the media since the verdict about how the Association missed opportunities to settle the case. One report said the case could have been settled for as little as $5 million. One of the plaintiffs' attorneys said in an article that appeared in the Kansas City Star that they were "virtually begging" the NCAA to settle. Neither the NCAA nor its attorneys have any documentation of either claim. In fact, the lowest written offer for settlement ever received by the Association was in a court-ordered letter in November 1997 that totaled $47 million for all three suits. I will have more to say about this in a moment, but first I would like to describe the context in which the restricted-earnings coaches rule was adopted and in which these suits were litigated. At the 1991 NCAA Convention, a number of cost-reduction proposals were considered by the membership. The proposals had been brought forth by a special committee charged by the NCAA Presidents Commission with identifying ways to reduce costs in college sports. The three pieces of legislation that established the restricted-earnings positions were a compromise, designed to create an entry-level position for new coaches trying to break in to the profession. Although the legislation did not specifically limit the position to graduate assistants, it is clear through reading the transcript that the positions were designed for graduate assistants and the salary cap was based on the cost of attending graduate school. There was even a five-year term in the positions set to assure that "new blood" would always be added to the coaching ranks. Almost immediately, the intent of the legislation was abused. Veteran coaches whose positions otherwise would have been eliminated by the same cost-reduction proposals in the 1991 Convention were moved into the restricted-earnings positions. Such personnel shifts defeated the purpose of the legislation. Some in the membership and elsewhere have suggested that legal counsel failed to warn the membership of the potential ramifications of the legislation. It is true that no legal advice was given on the Convention floor, but it is important to note that no advice was sought. The governance bodies that proposed the legislation believed then, as they do today, that the restricted-earnings proposals did not violate antitrust laws. The intent was clear. The goal of the compromise was benevolent. It was implementation of the legislation that was flawed. On several occasions, the Association sought settlement figures from the plaintiffs. Although there is documentation of demands for rescinding the rule and protecting the positions into the future, there never was serious discussion or documentation of a dollar figure for settlement proposed before April 1996. The Association received a proposed settlement in the Law v. NCAA case, involving restricted-earnings basketball coaches, for $61 million. That figure does not include the other two cases. I already have mentioned the November 1997 letters, which exceeded what the Executive Committee considered to be a fair settlement. The Association voluntarily entered into mediation in February 1998. Although the NCAA made a number of offers, including one for $18 million, the plaintiffs rejected all of them and never made any counteroffers. Regardless of how eager the plaintiffs' attorneys report they were to reach settlement, the fact is that the Association never received any written offers that were as reasonable as what has been described in the media. Finally, some media have criticized our decision to appeal. Beyond the fact that we have an absolute Constitutional right to pursue this appeal, let me say that we are doing so because a number of reversible errors occurred during the damages trial. If we did not believe we had a case, we would not pursue this course of action. This has been an adversarial process for all parties, and it has had the unfortunate result of pitting segments of the intercollegiate athletics community against one another. As lamentable as that it is, the fact is that the competitive nature of intercollegiate athletics has made controversy a constant companion for the NCAA. As chair of the NCAA Executive Committee, I am as eager as anybody for the healing process to begin, but it is vital that we take care to make certain that this damage is mended properly. Samuel H. Smith is president of Washington State University and chair of the NCAA Executive Committee. Letter to the Editor -- Wrestling participation on the reboundAccording to an April 30 article in The Washington Post, Doris Dixon of the NCAA staff "provided statistics that the number of high schools with wrestling dropped 37 percent in the last 20 years, an indication that interest in the sport has been tailing off before students reach college." After reading the article, I called the National Federation of State High School Associations and asked for some information. While wrestling participation took a dip in the 1980s, it is coming back strong. Wrestling has "without a doubt" shown growth over the past five years, said Fritz McGinness, associate director of the federation. Statistics from 1996-97 show wrestling with 227,596 participants -- up nearly 4,000 since 1991-92. Wrestling ranks sixth among the 32 different sports that are available to high-school students around the country. Wrestling ranks eighth in the number of schools offering programs, with 8,738. That shows a growth of 346 schools since the 1991-92 survey. In addition, membership at USA Wrestling, the sport's national governing body, has skyrocketed the last decade. There were 94,541 registered athletes in 1986, and there were 139,497 in 1996 -- a 50 percent increase in just 10 years. At the Amateur Athletic Union, wrestling has made tremendous gains the past five years and its membership now ranks No. 3 in size among the 34 sports administered by the AAU. It appears to me that Ms. Dixon is trying to paint a picture of wrestling that is out of date and no longer pertinent. The fact of the matter is that wrestling is growing at all levels except the collegiate level. Wrestling is mankind's oldest sport -- mentioned in the Bible and in the Epic of Gilgamesh, the oldest piece of extant literature known. It was also the sport of Abraham Lincoln and many other prominent Americans. It deserves to be preserved, and it can be preserved through Congressman Dennis Hastert's bill, which is exceedingly fair.
Mike Chapman Opinions -- Thoughts in the wake of the restricted-earnings decisionReaction to a $67 million judgment against the NCAA in a case involving the restricted-earnings coaching position:
Gary R. Roberts, law school dean "They (the NCAA) have thousands of these rules that could normally constitute a restraint of trade. The problem is they don't know which rules might be OK and which might be a problem, but it all depends on which judge a plaintiff might get. "Say UNLV wants to play 35 basketball games next year because they can make more money, but the NCAA says you can only play 28. Any other person could go to jail for something like that. It could be viewed as a per se violation of the antitrust act. Once you crack open this Pandora's box, how can you put the lid back on?"
Eugene F. Corrigan, former NCAA president (Corrigan was chair of the Special Committee on Cost Reduction, which recommended the legislation.) "I've just been flabbergasted over this whole thing. This is awful. I feel terrible about the decision, and I feel partly responsible. But I also feel we were sold out by the coaches. We were trying to enhance opportunity, not take it away.... "We created a position for them. There wasn't going to be anybody there. It was a huge compromise on our part. "We tried to make it a cost-containment committee, and the presidents said no, it's going to be a cost-reduction committee. Remember, this was during a time when presidents were having to let tenured faculty go. They wanted to know why we needed four coaches to coach 12 kids."
Ferdinand A. Geiger, director of athletics "This is how college athletics continually have trouble with regulations, when we're talking about legislating at the lowest common denominator. You sort of reduce the issues to what the poorest schools can afford, and there's the trap. Because by passing such legislation, you can be restraining trade and restricting commerce, and the legal system says you can't do that.... "I can't see things holding together forever the way they are now because there's going to come a time when I don't want to be told how many scholarships I can and can't have. Maybe it's time to find another division. It's a very, very cruel thing to say, but maybe that's what you're looking at."
Will Flemons, former restricted-earnings coach "This (the judgment) makes me kind of upbeat. It was the mere fact the third assistant did just as much work as the other assistants. I had a family and my family had to suffer. The NCAA should realize we have families and that a rule like that could cause major problems."
Max F. Urick, director of athletics "Nobody has told us what our options are. It will be dictated to us just like the rule was dictated to us when it was passed. I'm ticked off for a couple of reasons. When the legislation was passed there was no legal counsel. I'm ticked we didn't have that kind of counsel to prevent legal action. "I also must say every single restricted-earnings coach was aware of what they were getting into. I know coaches who turned down lucrative high-school jobs to remain as college assistants."
Tobacco use
Jim Dietz, baseball coach "A lot of blame (for spit tobacco use) goes to the coaches. More than a few are users themselves, and their players know it. "The stuff is addictive, and guys have trouble weaning themselves from it. Some don't want to. Two years ago, I had to threaten to remove an assistant from his job before he'd respect the rule. "You can tell by the atmospheres at different places if it's being enforced. During a recent road trip, the first thing I did after walking into our dugout was pick up a half-dozen smokeless tobacco tins.... "Some players tell you it has a calming effect, but I've never seen evidence of that....I think over a period of time it can adversely affect performance in areas like stamina. Socially, it's grotesque."
Management style
Chris Voelz, director of women's intercollegiate athletics "I count on my supervisors to be decisive. Reasonable people will disagree, but there comes a time when you can't take that differing opinion and go in two different directions. "I do not have an open door where 62 people can walk in at any given time. I think that undermines unit management. Go to your supervisor first and when both of you have decided to bring it to me, then I will be all ears."
Robert A. Bowlsby, director of athletics "I try to stay away from bringing two or three people into my office and everybody telling me their side and then me making the decision. I think the best way to handle it is to say, 'You're professionals, work this thing out. I want a compromise that everybody can live with."
David R. Hart Jr., director of athletics "You have to be a personable manager. You do some of that by sitting down and visiting with employees -- not just from an agenda-item perspective, but just by talking in general terms about the program, their roles and the people who report to them. You have to have everybody on the same page striving toward the common goal. Organizations that splinter, fail. The more splinters, the tougher it is to realize common goals."
Edward Leland, director of athletics "You have to have a personal philosophy and a departmental philosophy that you can stand behind when you are faced with (an) incredible level of uncertainty and incongruity regarding your goals and how your resources should be spent. You communicate those philosophies to as many people as you can and that gives you the most important tool for riding the praise and criticism you are going to get. "It is inevitable that you can't please everybody, but it is also inevitable that you will work hard to please as many people as you can. The key is to have a core mission statement to measure your day-to-day decisions against."
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The "case" is actually a combination of three lawsuits against the NCAA resulting from 1991 Convention legislation that established a salary cap and other limitations for certain Division I assistant coaching positions. A group of restricted-earnings coaches subsequently sued the Association, claiming the legislation violated federal antitrust law. A federal judge agreed with the plaintiffs, which led to the recent damage finding of $22.3 million.