Amateur Sport: Lessons from the U.S.
By Vidya Narayanaswamy
Amateur sport, by definition, involves participation for the joy of sport, without any monetary compensation. The ideal of amateurism in sport was intensely protected in the 19th century mostly by the elite sections of society who feared that professionalizing sport would weaken their monopoly over it. However, with the evolution of amateur sports and the rules that govern them, amateur sportspersons are now compensated through college scholarships, sponsorships and other benefits (some of which they are permitted to redeem only after they relinquish their amateur status).
A continuing issue however, in the area of amateur sport, is in relation to an athlete’s eligibility to participate as an “amateur”, or, in other words, an athlete’s “amateur status”. One of the most controversial decisions with regard to eligibility came soon after the 1912 Summer Olympics in Stockholm. Jim Thorpe, an American athlete won Gold in the decathlon as well as the inaugural edition of the pentathlon. After his return to the U.S., questions were raised in relation to his amateur status and eligibility to participate in the Summer Olympic Games. It was revealed that Thorpe had played professional baseball in 1909 and 1910, earning $2 per game. Thorpe appealed that he should be saved from penalty, as he had been very young then. However, his amateur status was withdrawn by the Amateur Athletic Union, and within days, the International Olympic Committee (IOC) also stripped him of his medals. Nearly 30 years after his death, in 1983, the IOC, relenting to pressure from his family members and the U.S. Congress, restored his medals.
As is evident from the above example, historically, even the IOC has insisted on the ideal of the amateur athlete. In 1986, the IOC amended the Olympic Charter to allow “all the world’s great male and female athletes to participate.” This change was brought on mainly due to the manner in which the USSR and other communist countries approached the Games. They fielded athletes who were fully supported by the government and trained throughout the year. While they were not strictly professional, in as much as they did not sign endorsement deals or win player contracts with leagues, their complete dedication to the game, and lack of any secondary pursuit, made them professional in effect.
Amateur Sport in the U.S.
Amateur sport is widely popular and intricately organised in the US especially with reference to school, high school and college level athletic events. The principal governing bodies for amateur sport at the college level are the National Collegiate Athletic Association (NCAA) and the National Association of Intercollegiate Athletics (NAIA). The NCAA is a larger association representing bigger universities and colleges in the U.S., whereas the NAIA is a smaller association representing small universities and colleges in the U.S.
The Constitution of the NCAA defines an ‘amateur student athlete’ as someone “who engages in a particular sport for the educational, physical, mental and social benefits he derives therefrom and to whom participation in that sport is an avocation as opposed to a vocation.” In furtherance of this definition, the NCAA Bye laws establish certain eligibility criteria for participation in amateur competitions, which can be divided into academic standards and professional status:
- The athlete should be enrolled in a full time programme with a minimum of 12 credit hours/semester;
- The athlete must maintain a minimum and cumulative GPA towards his/her degree.
- To maintain amateur status, the athlete should not be paid, or receive an incentive for playing in a game, in excess of what is required to cover his/her expenses (including tuition, fees, room, board, books, equipment and travel);
- The athlete should not have a contract, written or verbal, with any professional sports organization, agency or professional team.
The NCAA justifies these restrictions by stating that they are necessary to maintain the level of amateurism in intercollegiate sport, and also to discourage colleges from attracting athletes by promising high payments. The ‘principle of amateurism’ is focused on “maintaining a clear line of demarcation between college athletics and professional sports” and making sure that student athletes are guided by the social, physical and educational benefits of sport, rather than its commercial lure. Student athletes, whose financial assistance packages exceed the permissible amount, stand to lose their amateur status.
Moreover, student athletes signing contracts with professional teams may immediately be declared ineligible. This rule came under question in Shelton v. NCAA, 539 F.2d 1197 (9th Cir. 1976). Here the plaintiff, a student athlete, was declared ineligible to play after he signed a contract with a professional team. He claimed that he was forced to sign the contract by use of fraud and undue influence, which rendered the contract voidable. He therefore contended that the rule should not be enforced against him. The court held that a student athlete who signs a professional contract is ineligible to participate in intercollegiate athletics in that sport, irrespective of the enforceability of the contract. After this decision, the NCAA amended its rule to clarify its position that a student athlete will be stripped of his amateur status merely on the signing of a professional contract whether or not (a) the contract is legally enforceable; and (b) any consideration had been received by the athlete. This rule creates certain difficulties for young student athletes especially given that they are not allowed to appoint agents to advise and represent them in relation to negotiations and deal-signing with professional teams.
Another issue arises in the context of participation in professional sport in a different country prior to commencing education in the U.S. In Lasege v. NCAA, 53 S.W. 3d 77 (Ky. 2001), the NCAA declared a basketball player ineligible after it was discovered that he had received pay to play basketball professionally, before arriving in the U.S. His contention was that, as a citizen of Nigeria, he was unaware of the NCAA rules with regard to accepting pay to play professional basketball, and did not realize that his chances of playing as an amateur athlete in the U.S. would be affected. The court, however, upheld the NCAA’s decision in barring the athlete, holding that “allowing Lasege to compete when he has not met the amateurism qualifications undermines the NCAA ability to enforce the competition standards.”
A unique aspect of the NCAA Bye laws is that they permit an athlete to turn professional in one sport while continuing to remain an amateur in another. While this opens up multiple opportunities for talented student athletes, it often cannot be fully utilized due to the restraints on promotional appearances, endorsement opportunities and acting engagements imposed by NCAA Bye laws.
Amateur status in all sports is stripped the moment an athlete endorses any product, whether related to the sport or not. This rule occupied center stage in the case of Jeremy Bloom (Bloom vs NCAA 02-CV-1249), who had competed in professional skiing and become a World Cup champion in freestyle moguls. On the strength of his achievements, he signed brand endorsement deals and appearance deals with television channels. He was later recruited to play football for the University of Colorado. The University wrote to the NCAA requesting for a waiver allowing Bloom to continue his existing endorsements. However, the NCAA declared that Bloom could pursue college football only if he forfeited his endorsement and appearance opportunities. The Colorado Court of Appeal upheld the NCAA’s decision of barring Bloom’s participation in intercollegiate sport during the subsistence of his endorsement deals related to professional skiing. The court explained that the NCAA Bye laws while allowing athletes to receive professional salaries in other sports displayed a clear intent to prohibit athletes from obtaining endorsement deals. This was necessary to further NCAA’s interest in distinguishing amateur from professional sports.
The NCAA was set up to protect and look out for the best interests of student athletes. However, the widely held opinion in the U.S. is that it has developed into an organization that exploits its student athletes to promote its own financial gains, and the gains of its affiliate colleges. Indeed, it is arguable that the NCAA Bye laws are detrimental to the best interests of the student athlete.
The ‘no-agent rule’ is the first to come under the scanner. In the guise of protecting amateur athletes against unscrupulous sports agents, it actually prevents them from hiring a competent agent or lawyer to represent them in complex legal and business transactions. This rule is particularly unjust because one wrong move by the amateur during negotiations with a professional team could result in stripping of his/her amateur status.
The rule that excludes foreign players, who have accepted pay for performance prior to joining a U.S. college, discriminates against athletes on the basis of their national origin. Often foreign players, at the time of accepting pay, scholarships, etc., in their country are not mindful of the implications such an act may have on their prospect of becoming a student athlete in the U.S.
In relation to the Bloom case, many experts argued that the NCAA Bye laws must be amended to allow student athletes to engage in endorsements and other opportunities that were secured for reasons unrelated to the collegiate athletic pursuit. However, the outcome in this case merely demonstrates that the NCAA has failed to take a positive, proactive student athlete friendly approach in this case, which would not have undermined the primary objective relating to amateurism when the situation demanded it.
The truth of the matter is that amateur sport furthers the commercial interests of the various sports bodies and educational institutions (such as universities, schools and colleges). These educational institutions gain commercially from a successful athletic programme. Companies that sponsor college athletic programmes and competitions derive excellent publicity. Amateur sport provides them a platform to market to a targeted audience. Broadcasting partners are able to make huge profits by selling advertising spots. However, the amateur athlete, who drives this commercial juggernaut, is denied the opportunity to participate in it.
While amateurism may be a legitimate cause to further, it should not take precedence over the welfare of student athletes. At the least, student athletes should be allowed certain basic rights to protect themselves from being exploited by the system. Allowing a student athlete to retain a lawyer or agent in negotiations with professional teams is a protection that they should not be deprived of. The student athlete has little knowledge or experience in the business aspects of professional sport and he is unable to adequately assess his market value or skillfully negotiate a professional contract. And these responsibilities come in addition to his duties on the field and in the classroom. While allowing student athletes to retain professionals to represent them, the NCAA could require the athletes to sign standard form contracts with their agents verified by them. This will ensure that certain contractual terms such as duties, responsibilities and fees of the agent are fair and consistent. Along similar lines, allowing student athletes to pursue the benefits earned from sources unrelated to their college athletic career is also essential to promote their best interests. It is unfair to demand that an athlete sacrifice economic benefits obtained through legitimate means, which are unconnected with his participation in college athletics, in order to retain his status as an amateur athlete.
© The Sports Law & Policy Centre