Page 21 - Delaware Lawyer - Winter 2023

John Harris of Salesianum takes the baton from Amari Mathis in the 4x100 relay at the 2019 New Castle County championships.
responses to the decision. We will fin- ish with speculation on future legal is- sues that may arise from the unintended consequences unleashed by the ruling.
Amateurism or “pay for play” has been one of three central issues along with academic eligibility and competi- tive balance for the NCAA since its cre- ation in 1906. Player payments from boosters and alumni were an accepted part of college football in the first part of the 20th century, but concerns over the professionalization and lack of em- phasis on academics in the college game were harming its public perception. In 1948, the NCAA was granted enforce- ment powers through the passage of the Sanity Code by its members. The Sanity Code also addressed the issue of com- pensation by allowing schools to award tuition scholarships to athletes.
By 1956, room and board and inci- dental living expenses were added to the compensation of the student-athlete. At the time, these seemed to be reasonable compensation for the student-athlete considering the limited revenues that were being generated through the ath- letic department enterprise, primarily ticket sales, donations and significant institutional support, and while it could be argued that it was pay for play, the compensation was tied to athletes pur- suing an education.
An Influx of Revenue
The seeds for the Alston decision were sown by the 1984 U.S. Supreme Court in NCAA v. Board of Regents of University of Oklahoma, which affirmed the Court of Appeals decision that the Sherman Act had been violated by the
NCAA in relations to its television plan, which restricted the number of appear- ances by schools and shared the revenue amongst NCAA members.1
One consequence of Board of Re- gents was that the NCAA no longer controlled the television broadcast con- tract, which led to an increase in tele- vised games and an influx of television money distributed to the conferences and their members. For example, the planned revenue allocation for schools was $180,000 in 1982, the year after the case was initiated. Following the 1984 decision, the value of those me- dia rights escalated significantly. In fis- cal year 2021, Ohio State University received $48.9 million in media rights revenue, with football contributing $36.5 and men’s basketball $12.4 mil- lion. The majority of those funds are the distribution from the Big 10 Con- ference media rights packages with the ESPN and FOX networks.2
As these revenues have grown, student-athletes and their proponents have questioned whether payment for tuition, room and board and incidental expenses is fair enough compensation for those athletes whose exploits are essential to the revenue generated by multi-million-dollar TV contracts and gate receipts for stadiums that seat tens of thousands of paying customers.
In his dissenting opinion in the Re- gents case, Supreme Court Justice By- ron R. White looked into the future and expressed his concerns as to where the decision would lead intercollegiate athletics. White, a consensus 1937 All- American football player from the Uni- versity of Colorado, a Rhodes Scholar and a member of the College Football Hall of Fame, argued that the Court erred by treating the NCAA as a purely commercial and profit-oriented organi- zation. White argued that because the NCAA is uniquely linked to both ama- teur athletics and higher education, it has been allowed a great deal of leeway
WINTER 2023 DELAWARE LAWYER 19
BUD KEEGAN