That the NCAA is now a multibillion-dollar industry is “no accident. It was planned.” It was planned around a commonsense system of capitalism that has made anyone who is allowed to participate immensely rich. The glaring problem with the NCAA model, however, is on full display in HBO’s recent documentary, The Scheme. The players who create literally all of the wealth are not allowed to participate in what would otherwise be an equally beneficial market. The result is a guaranteed black-market economy similar to how drug-war prohibition laws produce thriving black markets.
The fault with the NCAA is a long-recognized one. In his immensely influential work On Liberty, John Stuart Mill argued “there should exist a general presumption against paternalistic attempts to interfere with an individual’s self-regarding conduct for their own good.” The NCAA goes against this general presumption in every conceivable way by prohibiting adult players from profiting off of their own highly developed or inherent skills, in an already existing multibillion-dollar private market. A market that naturally wants the players to be involved. Just as shoe companies sign apparel and advertising deals with coaches and schools, our existing professional sports organizations already demonstrate these market industries will seek individual players for mutually beneficial contractual deals. The college system is only different because the NCAA structures a system of prohibition against player-involved commerce.
In every sense of the definition, the prohibition against players from participating in these rich legal markets amounts to exploitation. I’ll let attorney and college basketball analyst Jay Bilas explain:
The NCAA states that it protects players from being exploited commercially. Does that ring true to anyone? The NCAA uses the players as billboards for apparel deals and uses their names and likenesses to sell the product, and to sell media-rights deals. The NCAA continues benefiting from this multibillion-dollar business, while the players get only a scholarship, and the only ones exploiting the athletes are the NCAA and the member institutions. When you use a person to make money while at the same time limiting that person from making money, you exploit. Players are certainly not mistreated, but they are exploited.
However, the prohibition and exploitation are also destructive. As the HBO documentary makes clear, the players are worth gigantic amounts of money to private industry. Not allowing players to engage in commerce with legitimate market players and mechanisms such as contract remedies to utilize their undeniable economic value ensures that bad actors will inevitably fill the void. The result is often damaging, with people in jail who were only guilty of trying to facilitate universally beneficial commerce for others.
The lesson of how paternalistic interference in the lives of others can be more damaging than the harms the interference is trying to prevent is too well documented to be excused now. It has become a matter of choice as to whether institutions want to continue with an obviously unintelligible, grossly exploitative and damaging system over an equally obvious universally beneficial one. When it comes to the NCAA, maintaining the exploitation is the most logical factor for entrenchment within their current system. But documentaries like The Scheme gives anyone who cares to look a direct insight into how damaging and destructive the NCAA system is.
Obviously, the NCAA is a private organization and can make its own rules. That fact doesn’t put the NCAA’s structure above scrutiny, however. The amount of mutually beneficial commerce the NCAA is prohibiting should anger everyone. Even more enraging should be our government using its tax dollars to bend the law to enforce the NCAA’s seriously flawed rules. Another obvious point to be made though, is that every NCAA athlete is a grown adult with a unique set of personal skills. Limiting their ability to profit off of those skills confers no offsetting social benefit to anyone, it only ensures a select few others calling themselves a nonprofit have a monopoly on the immensely profitable market.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.
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