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DEFLATING AMATEURISM: HOW

COLLEGE BASKETBALL’S BUBBLE

CONSIDERATION UNDERMINES THE

NCAA’S PRINCIPLE OF AMATEURISM

Taylor A. Story

To improve is to change; to be perfect is to change often.

-Sir Winston Churchill

INTRODUCTION

Imagine the confusion of a full-time Amazon employee, often

required to work overtime, if they received compensation limited

to the cost of their food, transportation, and living arrangements

instead of a normal paycheck. The reason provided is that they are

employed to attain training in the necessary job skills. To many

this would appear unfair, maybe illegal, and it would certainly

draw national media attention and swift condemnation from many

public figures.

Instead of occurring at a fictional Amazon factory, such situa-

tions of inequity and payment occur daily in intercollegiate athlet-

ics. Conversely, only a momentary collective outrage is expressed

by the national media and public figures, before turning back to

other matters. Meanwhile, the National Collegiate Athletic Asso-

ciation (“NCAA”) — intercollegiate athletics governing body —

Editor-in-Chief, Mississippi Sports Law Review (Vol. 10); J.D. Candidate 2021,

The University of Mississippi School of Law. The author wishes to thank Professor

William W. Berry III for his assistance, feedback, and guidance in the development of

this comment. The author also wishes to thank Mackinlee Rogers for her time, helpful

commentary and suggestions throughout the writing process, as well as Sachi Denham,

Rachel Henderson, and the entire staff of the Mississippi Sports Law Review.

328 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

and its member institutions (i.e., colleges and universities) contin-

ue to generate millions of dollars off of their “student-athletes”

labor without ensuring they receive the meaningful education that

was promised.

The NCAA exists to protect the integrity of intercollegiate

athletics by upholding the principle of amateurism.

The NCAA

defines an amateur as a student-athlete whose participation in

intercollegiate athletics is primarily motivated by education and

who the NCAA protects from exploitation by commercial inter-

ests.

Historically, an amateur participated in athletics only for

the love of the sport and received no compensation.

Conversely,

the NCAA allows compensation in the form of scholarships limited

to tuition and room and board, in addition to the allowed cost of

attendance.

Commercialization has transformed intercollegiate athletics

from competition between student-athletes who participated in

athletics while attaining an education, to a competition between

“employee-athletes” whose participation generates vast wealth for

other stakeholders while denigrating the athlete’s ability to attain

a meaningful education.

The latest example of this reality is the NCAA’s response to

the outbreak of the coronavirus (“COVID-19”) pandemic. Instead

of focusing on ensuring student-athletes receive a meaningful ed-

ucation — the NCAA’s purported primary motivation for an ath-

lete’s athletic participation — during trying times, the NCAA fo-

See What is the NCAA? NCAA, http://www.ncaa.org/about/resources/media-

center/ncaa-101/what-ncaa (last visited Dec. 2, 2020).

See id.

Nat’l Collegiate Athletic Ass’n, 2020-21 NCAA Division I Manual (Aug. 2020),

available at https://web3.ncaa.org/lsdbi/reports/getReport/90008, (hereinafter NCAA

Division I Manual).

The International Olympic Committee and the Modern Olympic Games (1950),

https://stillmed.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through

_time/1950-Olympic_Charter.pdf (“You will be a true sportsman[, a]s an athlete . . . [i]f

you take part in sport for the love of it . . .”) (emphasis omitted) (Hereinafter IOC Man-

ual).

See generally O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F. Supp. 3d 955

(N.D. Cal. 2015), aff’d in part, vacated in part, 802 F.3d 1039 (9th Cir. 2015); In re:

National Collegiate Athletic Association Athletic Grant-in-aid Cap Antitrust Litigation,

375 F.Supp. 3d 1058 (Cal N.D. 2019), aff’d, 958 F.3d 1239 (9th Cir. 2020), cert. granted

sub nom. NCAA v. Alston, 2020 WL 7366281 (Mem).

2021] Deflating Amateurism 329

cused its attention on ensuring its largest revenue generator

March Madness can occur.

Additionally, the NCAA has sought to

take advantage of COVID-19 by filing trademarks for multiple

phrases related to conducting college basketball during such

times.

The commercialization of intercollegiate athletics and simul-

taneous neglect of the NCAA’s principle of amateurism’s purport-

ed educational aim reveal the stark reality that money drives in-

tercollegiate athletics and not amateurism values. This then un-

dermines the NCAA’s defense of its principle of amateurism and

the rules promulgated to uphold it. The NCAA amateurism model

and their control of intercollegiate athletics now faces two immi-

nent threats: the outbreak of COVID-19 and subsequent oppor-

tunity it provides for the Power Five Conferences — ACC, Big

Ten, Big 12, Pac-12 and SEC — to seize further control by break-

ing away from the NCAA in basketball and potentially other

sports, as well as the imminent review of the NCAA’s amateurism

rules viability under antitrust law by the Supreme Court.

Part I of this note briefly describes the history of the NCAA

and the competing narratives of intercollegiate athletics. Part II

describes the National Basketball Association’s implementation of

a Bubble to complete their 2020 season and the proposed use of a

Bubble or controlled environment during the upcoming college

basketball season. Part III analyzes the conflict between the

commercial interests of modern intercollegiate athletics and the

NCAA’s principle of amateurism. Part IV argues that the consid-

eration of implementing a Bubble for the upcoming college bas-

ketball season undermines the NCAA’s principle of amateuris-

m. Part V concludes this note by laying out the two major immine

nt threats to the NCAA’s amateurism model and their continued

See Joseph Choi, NCAA in talks to host all of March Madness in Indianapolis,

The Hill (Nov 16, 2020), https://thehill.com/blogs/in-the-know/in-the-know/526173-

ncaa-in-talks-to-host-all-of-march-madness-in-indianapolis.

See Dylan Wallace, NCAA Files Trademark for “Battle in the Bubble, FanNation

(Aug. 31, 2020), https://www.si.com/college/indiana/basketball/ncaa-filed-trademark-

for-battle-in-the-bubble; Joe Kinsey, NCAA Files Trademark For ‘Mask Madness’ to go

with ‘Battle in the Bubble,’ Outkick (Dec. 28, 2020), https://www.outkick.com/ncaa-

files-trademark-for-mask-madness-to-go-with-battle-in-the-bubble/ (reporting that

ESPN commentator Jay Bilas jokingly wondered if the NCAA would try to trademark

the phrase “Mask Madness” following their filing of a trademark for the phrase “Battle

in the Bubble” months earlier).

330 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

control of intercollegiate athletics: the outbreak of COVID-19 and

the opportunity it presents the Power Five Conferences to further

breakaway from the NCAA and the impending review of the via-

bility of the NCAA’s amateurism rules under antitrust law by the

Supreme Court

I. THE COMPETING NARRATIVES OF

INTERCOLLEGIATE ATHLETICS

The NCAA serves as the governing body of intercollegiate

athletics.

Its primary responsibilities include enforcing the rules

established by its member institutions and conducting annual

championships.

The modern NCAA, though, reflects little of its

humble origins. As the industry of intercollegiate athletics has

expanded and its popularity grown, so too has the NCAA’s role.

The NCAA’s expanded role has landed it at the center of pub-

lic debate surrounding the future of intercollegiate athletics and

the NCAA’s role in them. This debate has resulted in two compet-

ing narratives. The NCAA narrative centers on the concept of the

“student-athlete” in an environment where athletic participation

is primarily motivated by education.

On the other hand, the al-

ternative narrative centers on the concept of the “employee-

athlete” whose primary motivation for attending an academic in-

stitution is athletic participation.

These two narratives come into conflict when comparing the

educational interests asserted by the NCAA and the economic re-

alities that the commercialization of intercollegiate athletics have

resulted. This debate plays out not only among common fans but

in front of agencies such as the National Labor Relations Board

and courts as high as the Supreme Court.

See What is the NCAA, supra note 2.

See id.

See NCAA Division I Manual, supra note 4.

See William W. Berry III, Employee-Athletes, Antitrust, and The Future of

College Sports, 28 Stan. L. & Pol’y Rev. 245, 262 (2017).

2021] Deflating Amateurism 331

A. History of the NCAA and the “Student-Athlete” Narrative

1. History of the NCAA

Much like the NCAA, modern college football resembles little

of its humble beginnings. Multi-million-dollar coaching contracts,

hundred-million-dollar stadiums, and technology providing fans

unlimited access to their favorite teams did not exist. What exist-

ed then, and does today, is the opportunity for institutions to gen-

erate inordinate revenue from athletics and infatuated fans ex-

pecting instant victory and sustained success.

Such opportunity and excitement offered fertile ground for

unethical and potentially downright dangerous behavior.

In pur-

suit of success, institutions admitted otherwise academically inel-

igible players, created classes just for athletes, and had professors

hand out undeserved grades.

All of these actions were taken in

the pursuit of athletic success.

Likewise, wealthy alumni offered

money to come play or to continue playing at their institution.

While the willingness to engage in unethical behaviors was

worrisome, it paled in comparison to the intentionally dangerous

actions teams took on the field. Players deliberately targeted other

teams’ top players with the hopes of causing serious injury or end-

ing their season altogether.

The apex arrived during the 1905

season, which resulted in more than eighteen players killed and

See Jim Weathersby, Teddy Roosevelt’s Role in the Creation of the NCAA, The

Sports Historian (July 6, 2016), https://www.thesportshistorian.com/teddy-roosevelts-

role-in-the-creation-of-the-ncaa/#.

See id.

See id (“For example, in a game between Princeton and Dartmouth, Princeton’s

players intentionally broke the collarbone of Dartmouth’s best player early in the

game. Other premeditated acts such as breaking an opponent’s nose were common-

place. In some cases, players died from overly aggressive play. A Union College player

died after a play during a game with New York University.”).

332 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

over 100 serious injuries.

Finding this environment untenable,

many institutions considered discontinuing their programs.

National attention arrived on the issue when President The-

odore Roosevelt, an Ivy League graduate and avid football fan,

intervened.

President Roosevelt called a conference with athletic

directors from three top institutions to discuss college football’s

reformation.

Continued problems led the Chancellor of New

York University (“NYU”) to invite leaders from some of the coun-

try’s top programs to determine the future of college football.

While President Roosevelt’s conference resulted in little concrete

action, the NYU meeting resulted in the formation of a rules

committee.

President Roosevelt requested that the participants of his

White House conference and the NYU Chancellors conference

meet and continue their progress towards meaningful reform.

year’s end, this work resulted in the establishment of the Intercol-

legiate Athletic Association (“IAA”), composed of 60 member insti-

tutions.

Five years later, the IAA changed its name to the

NCAA.

Despite massive economic and technological expansion and

numerous changes to the competition structure and rules, the

NCAA remains intercollegiate athletics’ sole governing body. To-

day the NCAA is comprised of 1,098 member institutions (i.e., col-

leges and universities), competing in three different divisions and

spread out over 102 athletic conferences.

The NCAA website

states that each year “[n]early half a million college athletes make

See Rodney K. Smith, A Brief History of the National Collegiate Athletic Associ-

ation’s Role in Regulating Intercollegiate Athletics, 11 Marq. Sports L. Rev. 9, 12

(2000).

See Weathersby, supra note 13 (Responding to the egregious level of danger

“Columbia and Union abolished football and more schools threatened to do the same.

Harvard’s president also called for the abolition of the sport”).

See id.

See id (Explaining the high-powered schools consisted of mostly Ivy Leagues,

such as Harvard, Pennsylvania, Princeton, and Yale, along with schools such as Union

and Swarthmore).

See Smith, supra note 19, 12.

See e.g., id.

See id.

See e.g., id.

See What is the NCAA, supra note 2.

2021] Deflating Amateurism 333

up the 19,886 teams that send more than 57,661 participants to

compete each year in the NCAA’s 90 championships in 24 sports

across 3 divisions.”

NCAA member institutions promulgate the rules of intercol-

legiate athletics.

Presidents from various institutions serve on

committees that “ultimately decide which rules to adopt—

everything from recruiting and compliance to academics and

championships—and implement them on campus.”

Institutions

agree to abide by and uphold these rules and ensure compliance

by their athletes.

Under the leadership of President Mark Em-

mert,

the NCAA and its 500 employees, enforce and uphold these

rules and conduct all annual championships, except the College

Football Playoffs.”

In recent years, the emergence of a heated debate over the

NCAA’s amateurism rules has resulted in two competing narra-

tives: the NCAA’s “student-athlete” narrative

and the alterna-

tive “employee-athlete” narrative.

This note will consider both

narratives and the supporting and opposing arguments.

2. The NCAA’s “Student-Athlete” Narrative

The NCAA narrative centers on the idea of the “student-

athlete.”

Essentially, a student-athlete is an amateur who plays

the sport simply “for the love of the game.”

Therefore, the stu-

dent-athlete’s primary purpose for attending an institution and

participating in athletics is attaining an education.

To better understand the principle of amateurism and how it

has changed throughout the years, many scholars have analyzed

the shift in amateurism from its pure beginnings to its complex

Id.

See id.

Id.

See Compliance, NCAA, http://www.ncaa.org/compliance (last visited Dec. 2,

2020) (hereinafter Compliance).

See About Us, Office of the President, NCAA, http://www.ncaa.org/about/who-

we-are/office-president (last visited Dec. 2, 2020).

See What is the NCAA, supra note 2.

See NCAA Division I Manual, supra note 4.

See Berry, Employee-Athletes, supra note 12.

See NCAA Division I Manual, supra note 4.

See IOC Manual, supra note 5.

See NCAA Division I Manual, supra note 4.

334 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

modern form.

While amateurism may trace its roots as far back

as ancient Greece, analysis of the current form necessitates look-

ing only as far back as Victorian England.

British elites em-

ployed the term to separate themselves from working-class people

in the sport of rowing.

In its original form, “amateur” was used to define one who

only competed in sport as a hobby.

A professional, on the other

hand, competed out of a need or want for money.

In this reality,

money played second fiddle to the desire to maintain separate so-

cial distinctions.

The rules created by the 1950 International Olympic Com-

mittee (“IOC”) reinforced the original definition:

An amateur is one who participates and always has partici-

pated in sport solely for pleasure and for the physical, mental

or social benefits he derives therefrom, and to whom partici-

pation in sport is nothing more than recreation without mate-

rial gain of any kind, direct or indirect and in accordance with

the rules of the International Federation concerned.

See William W. Berry III, Amending Amateurism: Saving Intercollegiate

Athletics Through Conference Athlete Revenue-Sharing, 68 Ala. L. Rev. 551, 557-

60 (2016) (Discussing the evolution of the definition of amateurism from its founding to

the modern era) (hereinafter Amending Amateurism); see also Kristen R. Muenzen,

Weakening Its Own Defense? The NCAA’s Version of Amateurism, 13 Marq. Sports L.

Rev. 257, 259-63 (2003) (Discussing the evolution of the NCAA’s definition of amateur-

ism and how the dictionary definition and NCAA definition stand at odds).

See Patrick Hruby, The Olympics Show Why College Sports Should Give Up on

Amateur-

ism, The Atlantic (Jul. 25, 2012), http://www.theatlantic.com/entertainment/archive/20

12/07/the-olympics-show-why-college-sports-should-give-up-on-amateurism/260275/

(Stating “In reality, amateurism in both the Olympics and college sports comes from

the same place: Victorian England.”).

See id; see also e.g., Berry, Amending Amateurism, supra note 40; Anna

McCullough & Aswin Tony Subketaew, Ancient Greek “Amateurism,” the NCAA and

the Courts, 31 Int’l J. Hist. Sport 1033 (2014).

See Hruby, supra note 41 (Explaining that to differentiate themselves from the

working class, British elites coined the “concept of amateurism…extending it

more…[to] someone who…only did sport as a hobby.”); See also IOC Manual, supra

note 24 (“An amateur is one…to whom participation in sport is nothing more than rec-

reation”).

See Berry, Amending Amateurism, supra note 40, at 557-58.

See Hruby, supra note 41.

See IOC Manual, supra note 5.

2021] Deflating Amateurism 335

In the IOC’s view, an amateur athlete only “[took] part in

sport for the love of it.”

In practice, while Olympic Athletes did

not receive direct compensation for their participation, their celeb-

rity status and success resulted in significant financial gain.

The NCAA’s modern definition adds one major caveat — edu-

cation is the primary motivation for participation in athletics and

sports are simply an avocation.

The NCAA manual states:

Student-athletes shall be amateurs in an intercollegiate sport,

and their participation should be motivated primarily by edu-

cation and by the physical, mental and social benefits to be

derived. Student participation in intercollegiate athletics is an

avocation, and student-athletes should be protected from ex-

ploitation by professional and commercial enterprises.

Under the NCAA’s view, participation in athletics is merely

an avocation –– a hobby or minor occupation –– secondary to the

primary reason for participation: attaining a meaningful educa-

tion.

To further this educational aim, the NCAA has established

mandatory eligibility rules.

These rules have undergone numer-

ous changes over the years. The current rules require incoming

athletes to complete sixteen core classes identified by the NCAA

and attain the required minimum grade point average (“GPA”)

and Scholastic Aptitude Test (“SAT”) or American College Test

(“ACT”) score on the NCAA’s sliding scale eligibility model.

Id.

See Hruby, supra note 41 (Citing Neil Faulkner, Olympic Myth #1, Yale Univer-

sity Press: YaleBooks (April 23, 2012), https://yalebooksblog.co.uk/2012/04/23/olympic-

myth-1-the-amateur-ideal-author-article-by-neil-faulkner/ (“[Ancient Olympic] champi-

ons invariably became very rich men. They may have left Olympia with only an olive

crown, but they could expect ample reward for their efforts at home, and they could

earn generous prizes thereafter by appearing at any of some hundreds of local sports

festivals.”).

See NCAA Division I Manual, supra note 4, §2.9.

Id. (emphasis added).

Id.

See generally NCAA Division I Manual, supra note 4.

Paul C. Weiler et al., Sports and the Law: Text, Cases and Problems 803-04 (6th

ed. 2008) (The 16 core courses are composed of 4 years of English, 3 years of Math, 2

years of Science, 1 additional course in either English, Math, or Science, 2 years of

social science, and four years of “additional academic course work.” Students must

secure a minimum 2.00 GPA in these core courses). See also William W. Berry III, Ed-

336 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

The most significant change came with the NCAA’s introduc-

tion of the Academic Progress Rate (“APR”) system.

The APR

employs a series of complex calculations, requiring assigned points

to be added up and divided by a team’s possible points, and then

multiplied to determine an average for the team.

A team’s fail-

ure to meet the required average can result in various penalties

including scholarship deductions.

If the failure continues further

penalties can include a loss of practice time, a reduction in the

number of permitted competitions, and more serious penalties

such as suspensions for coaches and limitations on membership

privileges.

Beginning in the 2008-09 season, the NCAA added an

eligibility requirement that teams competing in the postseason

must achieve either a 900 APR four-year average or a 930 APR

two-year average.

These requirements caused institutions to make significant

investments in resources aimed at ensuring eligibility. Athletes

now have access to academic success centers staffed with tutors

covering almost every subject.

Some institutions hire students or

volunteers to walk to various classes and ensure athletes’ attend-

ance,

while other institutions utilize smartphone applications to

do so.

Other investments include access to academic advisors

and counselors, academic tracking programs, and even required

study hall hours.

To protect the NCAA’s principle of amateurism, the rule book

provides an extensive list of conduct examples that could jeopard-

ize one’s amateur status.

Conduct generally prohibited includes:

receiving payment for participation in sports; accepting a promise

ucating Athletes Re-Envisioning the Student Athlete Model, 81 Tenn. L. Rev. 795, 813

(2014).

See supra note 53, Weiler at 803-04; Berry, Educating Athletes at 813-14.

Id.

See Student Athlete Academic Support, Vanderbilt University, https://www.

vanderbilt.edu/studentathletes/services/ (last visited Dec. 2, 2020).

See id; Jake New, Class Checkers, Inside Higher Ed (Jun. 24, 2015),

https://www.insidehighered.com/news/2015/06/24/attendance-monitoring-programs-

common-college-athletics.

See id.

See NCAA Division I Manual, supra note 4, § 12.1.

2021] Deflating Amateurism 337

of future payment; signing a contract to play for a professional

team; receiving a salary or other form of assistance from a profes-

sional team; competing on a professional team even without pay;

taking a break before college while continuing to play the sport;

receiving prize money from any competition above the allowable

amount; and being represented by or taking benefits from an

agent or endorsing a commercial product.

With that being said,

actions not explicitly listed in the rule book can still yet lead to a

violation if the NCAA deems it a threat to amateurism.

Despite shifting positions, the NCAA emphatically insists its

existence remains necessary to protect intercollegiate athletics’

integrity by upholding the principle of amateurism and protecting

student-athletes from “professional and commercial exploita-

tion.”

The NCAA takes this role very seriously, pursuing even

those most minor violations and handing out stiff penalties to

those who dare break the rules.

See id.

See Amateurism, NCAA, http://www.ncaa.org/student-athletes/future/

amateurism (last visited Dec. 2, 2020).

See Jeff Borzello, Penny Hardaway, James Wiseman and the Memphis Tigers: A

Timeline, ESPN (Dec. 19, 2019), https://www.espn.com/mens-college-basketball/

story/_/id/28059747/penny-hardaway-james-wiseman-memphis-tigers-line (During the

2019-2020 season, Memphis Tigers freshmen James Wiseman, the number one ranked

recruit, was ruled ineligible, after previously being ruled eligible, because the NCAA

declared head coach Penny Hardaway a booster for donating to help the university

build its hall of fame ten years prior. The problem being Hardaway had paid to help

Wisemen’s family move to Memphis to play for his high school team, and a year later

Hardaway was hired as the head coach. The NCAA argued Hardaway as a booster had

provided impermissible benefits to Wiseman’s family to get them to move to Memphis).

See Nat’l Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988); O’Bannon v. Nat’l

Collegiate Athletic Ass’n, 802 F.3d 1049, 1058-59 (9th Cir. 2015); See also NCAA Divi-

sion I Manual supra note 4, §2.9.

Gabrielle Hays, UT reports minor NCAA violations for 2018, 10 News (Aug. 15,

2018), https://www.wbir.com/article/sports/college/vols/ut-reports-minor-ncaa-

violations-for-2018/51-584350470 (Reporting that in 2018, the University of Tennessee

reported six-level III violation’s, including one for a recruit receiving popcorn and wa-

ter) (“According to [the] NCAA, 95 percent of all Level III incidents result in penal-

ties.”); See also NCAA, New Violation Structure Introduced, (Aug. 1, 2013),

http://www.ncaa.org/about/resources/media-center/news/new-violation-structure-

introduced (Level IV and III constitute the lowest level of violations. Level IV viola-

tions are “Incidental infractions that are inadvertent and isolated, technical in nature

and result in a negligible, if any, competitive advantage.” While Level II violations “are

isolated or limited in nature; provide no more than a minimal recruiting, competitive or

other advantage; and do not include more than a minimal impermissible benefit.”).

338 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

The NCAA Committee on Infractions investigates and adju-

dicates alleged rule violations, determines penalties, and hears

appeals.

Member institutions are required to self-police their

employees and athletes and report violations to the NCAA.

Fail-

ure to do so can result in even harsher penalties.

In fairness, the NCAA’s amateurism rules do not claim to fol-

low the original pure form, which allowed no compensation of any

kind. Conversely, the current rules allow limited compensation

tied to education.

Such compensation includes a scholarship that

covers tuition and room and board, in addition to the cost of at-

tendance.

B. The Alternative “Employee-Athlete” Narrative

The alternative narrative rests on the notion of the “employ-

ee–athlete,” in which athlete’s primary motivation to attend an

institution is athletic participation.

The NCAA and its member

institutions exploit these athletes’ free labor to generate financial

benefits for themselves and other stakeholders.

Supporters of

this position advocate for a pay-to-play approach in which athletes

can receive compensation for the revenue their athletic abilities

See Division I Committee on Infractions, NCAA, http://www.ncaa.org/governance

/governance/committees/division-i-committee-infractions (last visited Dec. 2, 2020).

See Compliance, supra note 32; NCAA Division I Manual, supra note 4, § 1.3.2.

See supra note 70.

See generally O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F. Supp. 3d 955

(N.D. Cal. 2015), aff’d in part, vacated in part, 802 F.3d 1039 (9th Cir. 2015); See also

NCAA Division I Manual, supra note 4.

See generally O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F. Supp. 3d 955

(N.D. Cal. 2015), aff’d in part, vacated in part, 802 F.3d 1039 (9th Cir. 2015); In re:

National Collegiate Athletic Association Athletic Grant-in-aid Cap Antitrust Litigation,

375 F.Supp.3d 1058 (Cal N.D. 2019), aff’d, 958 F.3d 1239 (9th Cir. 2020), cert. granted

sub nom. NCAA v. Alston, 2020 WL 7366281 (Mem).

See Berry, Employee-Athletes, supra note 12.

See Weiler, supra note 53, 721. See generally Joe Nocera & Ben Strauss, Inden-

tured: The Inside Story of the Rebellion Against the NCAA (2016); All Things Consid-

ered: “Indentured” Explores Efforts to Fight Mistreatment of College Athletes, NPR

(Feb 15, 2016), https://www.npr.org/2016/02/15/466848768/indentured-explores-efforts-

to-fight-mistreatment-of-college-athletes; Taylor Branch, The Shame of College

Sports, The Atlantic (Oct. 2011), http://www.theatlantic.com/magazine/archive/

2011/10/the-shame-of-college-sports/308643/.

2021] Deflating Amateurism 339

generate.

Under this view, the athlete is not a “student-athlete”

but rather an “employee-athlete” of their institution

This narrative is premised upon two general assumptions: (1)

at present, the commercialization of intercollegiate athletics has

already taken place— especially in the revenue sports of basket-

ball and football; and (2) commercialization has created obstacles

to athletes’ ability to obtain a meaningful education and thus un-

dermines the NCAA’s position.

The first assumption premising this narrative is that the

commercialization of intercollegiate athletics has already taken

place and will continue to expand. Supporters of the employee-

athlete narrative point to the explosion of revenues generated

from advertising, tickets, and television to exemplify the existing

and continued commercialization.

Although the athletes are

prohibited from receiving any remuneration from the revenues

they generate, the NCAA, conferences,

conference commission-

ers,

institutions, coaches, sponsors, and networks are not.

Commercialization has significantly expanded institutions’

revenue streams, which in turn are utilized to advance their ath-

letic department. The sale of broadcasting rights provides institu-

tions with significant financial windfalls.

Additionally, confer-

ences and institutions have launched their own television net-

See Berry, Amending Amateurism, supra note 40, 553. See Editorial, Pay to Play

(and Study) in College Sports, Chicago Tribune (Feb. 2, 2015),

http://www.chicagotribune.com/news/opinion/editorials/ct-ncaa-football-pay-edit-0202-

20150130-story.html.

See Berry, Employee-Athletes, supra note 12, 262-63. See also Decision and Di-

rection of Election, Nw. Univ. Emp’r & Coll. Athletes Players Ass’n (CAPA), No. 13-RC-

121359 (N.L.R.B. Mar. 26, 2014), http://apps.nlrb.gov/link/document.aspx/

09031d4581667b6f, dismissed on other grounds, 362 N.L.R.B. 167 (2015).

See Berry, Amending Amateurism, supra note 40, 560-65.

See id.

See Steve Berkowitz, Power Five Conferences had over $2.9 billion in revenue in

fiscal 2019, new tax records show, Statesman (Jul. 12, 2020), http://www.statesman.co

m/sports/20200712/power-five-conferences-had-over-29-billion-in-revenue-in-fiscal-

2019-new-tax-records-show (Showing in 2019, the Power Five conferences combined for

$2.9 billion in revenue. ACC $455.4 million, Big ten $780 million, Big 12 $439 million,

Pac-12 $530.4 million, SEC $720.6 million).

See id (Showing in 2019, Big Ten Commissioner Jim Delaney made $10.3 mil-

lion, Pac-12 Commissioner Larry Scott $5.4 million, Big 12 Commissioner Bob Bowlsby

$4.0 million, ACC Commissioner John Swofford $3.8 million, and SEC commissioner

$2.6 million).

See infra note 191.

340 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

works.

The increased cashflow opportunity has allowed coaching

salaries across the board to increase.

Likewise, institutions in-

vest inordinate financial capital in upgrading existing facilities or

even building new ones.

The resultant benefits are not exclusive to the institutions: as

commercialization has also enriched the fan experience. Fans now

have nearly limitless access and opportunity to purchase mer-

chandise related to their favorite team.

Additionally, fans can

purchase subscriptions to websites and message boards, which

grants access to exclusive information and provides a forum to

discuss the team.

The second assumption is that commercialization has created

obstacles to an athlete’s ability to attain a meaningful education.

Despite NCAA time restrictions,

athletes typically dedicate forty

See The Big Ten Conference Announces Media Agreements Increasing National

Coverage of Big Ten Sports, Big Ten (Jun. 21, 2006), https://bigten.org/new/2006/6/21/

The_Big_Ten_Conference_Announces_Media_Agreements_Increasing_National_Cover

age_of_Big_Ten_Sports.aspx; SEC Network to broadcast 24/7, ESPN (May 2, 2013),

https://www.espn.com/espn/story/_/id/9235260/sec-espn-announce-sec-network-2014;

Paul Steinbach, ESPN, University of Texas to Launch Longhorn Network, Athletic

Business (Jan. 2011), https://www.athleticbusiness.com/espn-university-of-texas-to-

launch-longhorn-network.html.

Ben Bolch et al, Expensive instructors: The salaries of every Power Five college

football coach, Los Angeles Times (Sept. 17, 2020), https://www.latimes.com/sports/

story/2020-09-17/ncaa-college-football-coaches-salaries-athletic-department-revenues.

See John Duffley, Kyle Field’s $450 Million Upgrade in Mesmerizing 1-Minute

Video, FanBuzz (Sept. 2, 2020), https://fanbuzz.com/college-football/sec/enjoy-this-time-

lapse-of-the-entire-kyle-field-reconstruction-project-for-tbt/ (Explaining in 2013, Texas

A&M approved a $485 million plan to increase the capacity of its stadium from 82,589

to 102,500.); Austin Miller, Ole Miss Releases First Phase of Renovation, Expansion

Plans for Vaught-Hemingway, Ole Miss (Aug. 7, 2014), https://olemisssports.com/

news/2014/8/7/Ole_Miss_Releases_First_Phase_of_Renovation_Expansion_Plans_for_V

aught_Hemingway; Thom Patterson, America’s incredibly expensive college football

stadiums, CNN (Sept. 28, 2018), https://www.cnn.com/2018/09/28/us/expensive-college-

football-stadiums/index.html (Showing Notre Dame spent $400 to update its stadium

adding new seating, a large video board, as well as improvements to the Wi-Fi, light-

ing, and press box. The University of Tennessee projected a cost of $340 million for

renovations to their entry gates and towers, as well as an expansion to the south con-

course.).

See Darren Rovell, Colleges alter jersey sales policy, ABC News (Jun. 5, 2014),

https://abcnews.go.com/Sports/colleges-alter-jersey-sales-policy/story?id=24011703.

See generally 247sports.com (Dedicated to tracking the top recruits in both col-

lege basketball and football); Rebel Grove on Rivals.com (Discussion board dedicated to

all thing related to the University of Mississippi athletics); elevenwarriors.com (Dis-

cussion forum for Ohio State fans).

See NCAA Division I Manual, supra note 4, §17.1.7.1.

2021] Deflating Amateurism 341

or more hours a week to athletics.

This all-consuming nature

limits athletes’ abilities to choose certain majors, or at the very

least causes them to shy away from more difficult ones, and can

limit the classes they enroll in.

Obstacles may also arise when institutions cut academic cor-

ners to meet the demands stemming from commercialization. Tac-

tics most often employed include placing athletes into easier clas-

ses, or with “athlete-friendly” faculty,

and employing qualified

tutors that ultimately completed athlete’s classwork instead of

assisting them in learning the material.

At the extreme end of the corner-cutting spectrum sit institu-

tions that commit outright academic fraud.

For example, the

University of North Carolina placed athletes in fraudulent classes

for over two decades.

These classes often did not meet and, in

some cases, did not have an assigned professor.

The classes’ only

requirement often consisted of a short paper due at the end of the

semester.

Athletes often received significant assistance from a

tutor in writing the paper. Moreover, the paper was then graded

by a secretary who typically did not read it in its entirety.

The facts underlying the employee-athlete’s two foundational

assumptions lead to the rejection of the NCAA’s proffered “stu-

See Peter Jacobs, Here’s the Insane Amount of Time Student-Athletes Spend on

Practice, Business Insider (Jan. 27, 2015), https://www.businessinsider.com/college-

student-athletes-spend-40-hours-a-week-practicing-2015-1 (Citing a 2011 NCAA sur-

vey in which “[m]any student-athletes, however, reported that they practice at least 30

hours a week on average, with some sports reporting weekly practice commitments of

more than 40 hours).

See Weiler, supra note 53, 721; See also William W. Berry III, Educating Ath-

letes Re-Envisioning the Student Athlete Model, 81 Tenn. L. Rev. 795, 813 (2014)

(hereinafter Educating Athletes).

See Berry, Amending Amateurism, supra note 40, 564; Berry, Educating Ath-

letes, supra note 90, 815-16.

See supra note 91.

See, Sean Gregory, North Carolina Academic Fraud Decision Exposes College

Sports Hypocrisy, TIME (Oct. 13, 2017), https://time.com/4981782/north-carolina-

academic-fraud-decision-exposes-college-sports-hypocrisy/; Jeremy Bauer-Wolf, NCAA:

No Academic Violations at UNC, Inside Higher Ed (Oct. 16, 2017), https://www.inside

highered.com/news/2017/10/16/breaking-ncaa-finds-no-academic-fraud-unc.

See supra note 94.

342 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

dent-athlete” model.

In sum, athletic participation primarily mo-

tivates an athlete’s attendance at an institution rather than edu-

cation.

Foundational to the employee-athlete model’s workability is

the existence of an employer-employee relationship between the

“employee” athlete and the “employer” institution. Recently, agen-

cies

100

and courts have increasingly lent credence to this con-

cept.

101

Peter Ohr, the National Labor Relations Board (“NLRB”)

Regional Director, outlined such a relationship and found scholar-

ship members of the Northwestern football team were university

employees.

102

Likewise, in Judge Hamilton’s concurring opinion in

the Seventh Circuit case, Berger v. NCAA, he reasoned that the

economic reality for revenue sports and scholarship athletes might

not comport with the principle of amateurism or a finding that

they are not employees.

103

Expounding on these opinions, Professor William W. Berry

III, illustrated the relationship between the “employee” athlete

and the “employer” institution.

104

Institutions hire athletes under

a term contract that lasts up to four years.

105

Consideration con-

sists of the athletes’ training and participation on the institutions’

behalf in athletic competitions.

106

In exchange, institutions agree

to compensate the athlete in the form of a scholarship.

107

Such

See, Berry, Employee Athletes, supra note 12, 262-63.

See supra note 98.

100

See Decision and Direction of Election, Nw. Univ. Emp’r & Coll. Athletes Players

Ass’n (CAPA), No. 13-RC-121359 (N.L.R.B. Mar. 26, 2014), http://apps.nlrb.gov/link/

document.aspx/09031d4581667b6f, dismissed on other grounds, 362 N.L.R.B. 167

(2015) (Hereinafter NLRB).

101

See generally O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F. Supp. 3d 955

(N.D. Cal. 2015), aff’d in part, vacated in part, 802 F.3d 1039 (9th Cir. 2015); In re:

National Collegiate Athletic Association Athletic Grant-in-aid Cap Antitrust Litigation,

375 F.Supp.3d 1058 (Cal N.D. 2019), aff’d, 958 F.3d 1239 (9th Cir. 2020), cert. granted

sub nom. NCAA v. Alston, 2020 WL 7366281 (Mem); Berger v. Nat’l Collegiate Athletic

Ass’n, 843 F.3d 285, 294 (7th Cir. 2016) (Hamilton, J., concurring).

102

See NLRB, supra note 101; See also Berry, Employee Athletes supra note 12,

262-63 (Analyzing the employee-athlete, by explaining the employee-employer rela-

tionship foundation used in the NLRB regional directors’ decision); Weiler, supra note

53, 880-81.

103

See Berger, 843 F.3d 285, 294 (Hamilton, J., concurring).

104

See Berry, Employee Athletes, supra note 12, 262-63.

105

See id.

106

See id.

107

See id.

2021] Deflating Amateurism 343

scholarships cover room and board, tuition, and the allowable cost

of attendance.

108

Additional consideration can come in the form of

academic support staff and facilities.

109

Although the agreement

requires the athlete’s attend class and progress towards a degree,

classroom attendance and educational advancement play second

fiddle to their primary “work” as an athlete.

110

These facts lead to

the conclusion that athletes chose institutions for their athletic

value rather than academic value.

111

The employee-athlete narrative rejects the NCAA’s position

that these are student-athletes motivated to compete primarily by

education. Instead, it asserts that athletes are “employees”, and

their member institutions are their “employers,” and thus the two

are engaged in an employer-employee relationship. Courts and

Agencies have begun to lend more credence to this idea.

C. The Agency and Judicial Response

The history and tradition of amateurism, as well as the

NCAA’s guardian roll, runs deep in intercollegiate athletics. The

Supreme Court recognizes “[t]he NCAA plays a critical role in the

maintenance of a revered tradition of amateurism in college

sports… [and] the preservation of the student-athlete in higher

education adds richness and diversity to intercollegiate athlet-

ics.”

112

Nevertheless, the modern definition of amateurism resembles

little of its pure beginnings.

113

The days of an amateur being the

casual rower in the English River

114

have yielded to the “amateur”

devoting over forty hours a week playing for highly paid coaches

in massive stadiums on prime-time television.

115

This modern

form of amateurism resembles little of its historical form.

As “amateurism” expanded, the NCAA’s stranglehold over in-

tercollegiate athletics lessened due to growing challenges to its

108

See id.

109

See id.

110

See id.

111

See id.

112

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85,

120 (1984).

113

See supra note 40.

114

See supra notes 41, 42.

115

See generally supra notes 23, 85, 90; infra note 188.

344 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

rules. Increasingly, this modern form appears to reflect more of an

“employee-athlete” relationship than a “student-athlete” one.

116

Agencies and courts have taken notice of such and progressively

now progressively offer less deference to the NCAA as more chal-

lenges are brought against its amateurism model.

117

In 2014, football players at Northwestern University filed a

case with the National Labor Relations Board (“NLRB”), arguing

they were University employees.

118

Although the NLRB’s ruling in

favor of the players was overturned on jurisdictional grounds, its

underlying reasoning offers a roadmap for the future.

119

NLRB Regional Director, Peter Ohr, concluded under these

circumstances that the athletes “met the criteria for being classi-

fied as employees.”

120

Director Ohr reasoned the athletes were

employees because (1) they provide a valuable service to the uni-

versity — as demonstrated by the substantial revenue and public

relations benefits the university receives; (2) they are compen-

sated — with scholarships that include tuition, fees, books, room,

and board; (3) they are required to perform services for the uni-

versity as a condition of receiving that compensation; and (4) their

“work” is controlled by supervisors, employees by the university

(their coaches).

121

Director Ohr provided additional reasoning for his decision,

which appears to support the argument that education is not the

primary focus. His reasons included: (a) players spent significant-

ly more time on athletics than education; (b) the players “work,”

playing football — for which they received no academic credit —

had no relationship to their education; (c) the university employ-

ees who supervise the players are coaches not academic faculty;

116

See NLRB, supra note 101; Berger, 843 F.3d 285, 294 (7th Cir. 2016) (Hamilton,

J., concurring).

117

See NLRB, supra note 101; O’Bannon v. Nat’l Collegiate Athletic Ass’n, 7 F.

Supp. 3d 955 (N.D. Cal. 2015), aff’d in part, vacated in part, 802 F.3d 1039 (9th Cir.

2015); In re: National Collegiate Athletic Association Athletic Grant-in-aid Cap Anti-

trust Litigation, 375 F.Supp. 3d 1058 (Cal N.D. 2019), aff’d, 958 F.3d 1239 (9th Cir.

2020), cert. granted sub nom. NCAA v. Alston, 2020 WL 7366281 (Mem); Berger v.

Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 294 (7th Cir. 2016) (Hamilton, J., concur-

ring).

118

See NLRB, supra note 101; Weiler, supra note 53, 880-81.

119

See NLRB, supra note 101, dismissed on other grounds, 362 NLRB 167 (2015)

120

Id. See also Weiler, supra note 53, 880-81.

121

See NLRB, supra note 101.

2021] Deflating Amateurism 345

and (d) the financial aid players receive was aimed at ensuring

athletic participation not academic completion.

122

Ultimately, the full NLRB vacated the decision of Director

Ohr on jurisdictional grounds.

123

The Board declined to opine on

the ultimate question of whether the athletes were employees.

124

However, the NLRB’s general counsel, Robert Griffin, did

weigh in on the question. Griffin sent a memo to the regional di-

rectors and stated, “it is clear . . . that scholarship football players

at Northwestern and other Division I FBS private colleges and

universities are employees under the NLRA because they perform

services for their colleges and the NCAA, subject to their control

and in return for compensation.”

125

Federal courts have also weighed into the “employee-athlete”

dispute. In Berger v. NCAA, former members of the University of

Pennsylvania women’s track and field team sued the University

on the claim they were employees under the Fair Labor Standards

Act (“FLSA”) and entitled to minimum wage.

126

The Seventh Cir-

cuit rejected their claim and held that their status as student-

athletes did not qualify them as employees.

127

In his concurring

opinion, Judge Hamilton questioned whether traditional amateur-

ism can coexist with the modern economic reality of commercial-

ized intercollegiate athletics.

128

The NCAA’s amateurism model has also faced antitrust law

challenges. In O’Bannon v. NCAA, Ed O’Bannon, a former mem-

ber of the University of California Los Angeles (“UCLA”) Bruins

basketball team sued Electronic Arts Sports (“EA Sports”) over the

use of his name, image, and likeness (“NIL”) in their college bas-

122

Id.

123

Nw. Univ. Emp’r & Coll. Athletes Players Ass’n (CAPA), 362 NLRB 1350 (2015)

(Held creating a bargaining unit in this situation, where other Big Ten institutions

were not subject to the NLRB’s jurisdiction as public universities, was not appropriate).

124

See id.

125

See Memorandum GC 17-01 from Richard Griffin, Jr., Gen. Counsel, NLRB, on

the Statutory Rights of University Faculty and Students in the Unfair Labor Practice

Context to All Reg’l Dirs., Officers-in-Charge, and Resident Officers (Jan. 31, 2017),

https://www.insidehighered.com/news/2017/02/02/nlrb-general-counsel-says-private-

college-football-players-are-employees.

126

Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 287 (7th Cir. 2016).

127

Id. at 287.

128

Id. at 294. (Hamilton, J., concurring).

346 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

ketball video game.

129

The initial suit for misapplication evolved

into a class-action lawsuit against the NCAA.

130

The class of cur-

rent and former players argued that the NCAA’s amateurism

rules, preventing their ability to receive compensation for the use

of their NIL, violated the Sherman Act.

131

The district court held that the NCAA’s amateurism rules

prohibiting athletes’ receipt of compensation for their NIL consti-

tuted an antitrust violation under the Sherman Act.

132

Judge

Claudia Wilken ruled that the NCAA must pay the athletes

$5,000 per year, to be held in a trust until they complete their ed-

ucation.

133

On appeal, although the Ninth Circuit upheld the deci-

sion, it determined that the cost of attendance was a sufficient

remedy.

134

In the class-action suit, in re: National Collegiate Athletic As-

sociation Athletic Grant-in-aid Cap Antitrust Litigation, current

and former athletes took their challenges to the NCAA’s amateur-

ism model a step further and questioned the legality of the

NCAA’s model.

135

They argued the NCAA’s compensation consti-

tuted a violation of antitrust law as an unlawful restraint on

commerce.

136

Although Judge Wilken did not strike down the en-

tire system, she did hold that the NCAA cannot place limits on

“benefits related to education.”

137

Her ruling further expanded the

cost of attendance category. On appeal, the Ninth Circuit af-

firmed.

138

These cases resulted in a perplexing dilemma for agencies

and courts. While they have repeatedly held the NCAA’s amateur-

ism rules in violation of antitrust laws, they have been unwilling

129

O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1055 (9th Cir. 2015)

130

Id. at 1055-56.

131

Id.

132

Id.

133

Id. at 1008-09.

134

Id. at 1079.

135

In re: National Collegiate Athletic Association Athletic Grant-in-aid Cap Anti-

trust Litigation, 375 F.Supp. 3d 1058 (Cal N.D. 2019), aff’d, 958 F.3d 1239 (9th Cir.

2020), cert. granted sub nom. NCAA v. Alston, 2020 WL 7366281 (Mem).

136

Id.

137

Id. at 1102.

138

In re: National Collegiate Athletic Association Athletic Grant-in-aid Cap Anti-

trust Litigation, 958 F.3d 1239 (9

Cir. 2020), cert. granted sub nom. NCAA v. Alston,

2020 WL 7366281 (Mem).

2021] Deflating Amateurism 347

to throw them out wholesale. Instead, courts have opted for in-

cremental change. One point is clearly discernible, though, where

the NCAA no longer enjoys the presumption that its amateurism

rules are valid.

II. THE BUBBLE ENVIRONMENT

Following the March 2020 outbreak of COVID-19 in the

United States, much of everyday life was thrown into chaos. Gov-

ernment’s closures of businesses and schools sent millions to un-

employment lines and left children stuck at home. The pandemo-

nium put society at a standstill, and professional and intercolle-

giate sports were not immune from this phenomenon. On March

11, 2020, the National Basketball Association (“NBA”) suspended

its season “until further notice” after a Utah Jazz player tested

positive for COVID-19.

139

The next day, the NCAA cancelled

March Madness, all other winter sports, as well as its planned

spring championships.

140

For many Americans, sports were far from the top of their

priority list; however, for organizations and individuals whose fi-

nancial viability depends upon them, sports were front and center.

These organizations and individuals were given the difficult task

of finding a way to permit sports to resume while also ensuring

safety. The result of their efforts? A “Bubble.” The theory behind

the “Bubble” was quite simple: The best chance of a return to

sports was the creation of an environment where everyone’s

movements could be controlled and thus maximizing the ability to

prevent the contraction or spreading of the virus.

Major sports leagues — including the NBA, WNBA, MLS,

and NHL — all adopted a Bubble or, at the very least, a more flex-

ible version of a controlled environment.

141

Their efforts ended in

139

See NBA suspends season until further notice after player tests positive for the

coronavirus, ESPN (Mar. 11, 2020), https://www.espn.com/nba/story/_/id/28887560/nba-

suspends-season-further-notice-player-tests-positive-coronavirus.

140

See Ahiza Garcia-Hodges, NCAA cancels March Madness tournaments, all other

winter and spring championships, NBC News (Mar. 12, 2020), https://www.

nbcnews.com/news/us-news/ncaa-cancels-march-madness-tournaments-n1157261.

141

See Adam Lashinsky and Brian O’Keefe, How the NBA kept the bubble from

bursting, Fortune (Oct. 15, 2020), https://fortune.com/longform/nba-bubble-2020-

orlando-florida-disney-covid-19-coronavirus-pandemic-los-angeles-lakers-lebron-james-

basketball/.

348 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

a resounding success. The success in professional leagues led to

the inevitable question of whether it could be translated into an

amateur environment.

142

This possible scenario raised numerous

concerns relating not only to cost and feasibility, but also compli-

ance with the virtues of amateurism.

143

A. The NBA Bubble

Similar to nearly every other organization around the globe,

the NBA did not escape the virus’ halt on society. Early in the

pandemic a player tested positive for the virus, and as a result the

NBA suspended its 2020 season. After months of deliberations,

the NBA decided to restart its season on July 13th in the “NBA

Bubble” (“Bubble”).

144

The players who decided to participate were

required to report to the Bubble on July 7

which allowed a suffi-

cient amount of time to quarantine before starting play.

145

The Bubble, slightly reminiscent of an Olympic Village,

146

was the result of collaboration between the NBA, ESPN, Walt

Disney World, and public health officials.

147

ESPN’s Wide World of

Sports Complex, located within the Walt Disney World Resort in

Orlando, Florida, provided the necessary facilities to safely re-

142

See College basketball bubble? NCAA considers adopting NBA’s approach for

‘20-21 season, FOX Sports (Sep. 7, 2020), https://www.foxsports.com/midwest/story/

college-basketball-bubble-ncaa-considers-adopting-nbas-approach-for-20-21-season-

090720.

143

Id.

144

See Everything you need to know about the 2019-20 NBA season restart, NBA

(Jul. 22, 2020), https://www.nba.com/nba-returns-2020-faq (hereinafter NBA Return).

145

See Tadd Haislop, NBA bubble, explained: A complete guide to the rules, teams,

schedule & more for Orlando games, SportingNews (Aug. 26, 2020),

https://www.sportingnews.com/us/nba/news/nba-bubble-rules-teams-schedule-

orlan-

do/zhap66a9hcwq1khmcex3ggabo#:~:text=Upon%20arrival%20at%20the%20NBA,how

%20often%20players%20are%20tested.

146

Generally, the Olympic Village, is where Olympic Athletes live during the Olym-

pic Games. The Village has dormitories, places to congregate, as well as places to eat.

See Adam Carlson, Past Gold Medalists Dish on What It’s Really Like Inside the

Olympic Village, People (Feb. 17, 2018), https://people.com/sports/life-inside-olympic-

village/.

147

See Ramona Shelburne, How Adam Silver, the NBA’s stars and owners negotiat-

ed these playoffs, ESPN (Jun. 4, 2020), https://www.espn.com/nba/story/_/id/

29267245/how-adam-silver-nba-stars-owners-negotiated-playoffs.

2021] Deflating Amateurism 349

sume the season and mitigate the spread of COVID-19 infec-

tions.

148

To achieve this goal, the NBA limited the number of allowed

team personnel, prohibited guests, required those arriving to

quarantine in their hotel rooms for a specified period, and man-

dated two negative tests.

149

Additionally, the NBA instituted de-

tailed protocols for those who received a positive test.

150

Those who left the Bubble’s confines were subject to specified

quarantine and testing protocols.

151

If one left without an appro-

priate excuse, they were subjected to pay reductions.

152

To ensure

safety and reduce the potential spread of the virus, players had

food provided to their rooms during the initial quarantine period,

and then had designated rooms to get food thereafter.

153

The NBA

strictly enforced these rules and went as far as setting up a hot-

line for individuals to call and report violations to ensure compli-

ance.

154

The sixteen teams previously qualified based on the stand-

ings at the suspension of play were invited to play in the Bubble,

as well as teams within six games of the lowest-seeded team in

each conference.

155

The twenty-two teams invited each played

eight “seeding games,” from their remaining regular-season

schedule, to determine which teams would make the playoffs.

156

One notable caveat was the addition of a possible play-in

tournament between the eighth and ninth seeds if the latter was

148

See Haislop, supra note 146 (Noting that ESPN and the NBA have a strong con-

nection to each other, but that it made the most logistical sense given the fact Disney

World, has three different courts that could be used, as well as multiple hotels, and the

ability to isolate that area of the campus to keep others out).

149

See id; See also NBA Return, supra note 145.

150

See Haislop, supra note 146 (Explaining the process, a person in the Bubble

would undergo following a positive test).

151

Id.

152

Id.

153

Id.

154

Id.

155

See NBA Return, supra note 145. See also Kurt Helin, Are plans for a play-in

tournament just to get Zion Williamson in the bubble? NBA

Sports (May 28, 2020),

https://nba.nbcsports.com/2020/05/28/are-plans-for-a-play-in-tournament-just-to-get-

zion-williamson-in-the-bubble/ (Noting ESPN.com writer Brian Windhorst opined that

certain teams in the league felt this was a ploy by the NBA to allow rookie Superstar

Zion Williamson to play games in the Bubble).

156

Id.

350 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

within four games of the former.

157

If needed, the play-in tourna-

ment would consist of a best of two series, where the lower seed

would have to win both games to advance to the playoffs.

158

Other

than this one caveat, the playoffs were conducted in the tradition-

al manner culminating with the NBA Finals beginning on Sep-

tember 30, 2020.

159

Ultimately, the NBA Bubble succeeded in keeping players

and staff safe and allowed the NBA to crown a 2020 champion.

160

All in all an impressive feat considering the league commissioner

did not originally believe the idea “sounded[ed] logistically realis-

tic.”

161

The total cost of pulling off such an achievement was re-

ported to be around $180 million with the NBA expecting to fall

short of its revenue goal by around $1.5 billion.

162

B. The Proposed College Basketball Bubble(s)

In September 2020, the NCAA announced the college basket-

ball season would move its start date back to November 25

163

It,

however, offered no clarity about how that season would be con-

ducted.

164

Not only were teams left scrambling to piece together

schedules for the season, but they also had to figure out where and

how to play them. The confusion led to the inevitable question:

could college basketball successfully imitate an NBA-style Bubble,

or would the associated costs, including testing and travel, be too

exorbitant?

157

Id.

158

Id.

159

Id.

160

See Lashinsky, supra note 142 (Noting the Los Angeles Lakers prevailed in six

games over the Miami heat to claim the team’s seventeenth championship).

161

See Jeff Zillgitt, Meet the eight key figures who helped make the NBA bubble a

success, USA T

ODAY (Oct. 13, 2020), https://www.usatoday.com/story/sports/nba/2020/

10/13/nba-bubble-succeeded-because-eight-key-figures-adam-silver/3640236001/.

162

See Lashinsky, supra note 142.

163

See Greg Johnson, DI Council approves Nov. 25 start date for men’s and wom-

en’s basketball, NCAA (Sept. 16, 2020), http://www.ncaa.org/about/resources/

media-center/news/di-council-approves-nov-25-start-date-men-s-and-women-s-

basketball.

164

See Myron Medcalf and Jeff Borzello, What Wednesday’s NCAA ruling will mean

for the 2020-21 college basketball season, ESPN (Sept. 15, 2020), https://www.espn.com

/mens-college-basketball/story/_/id/29884573/what-wednesday-ncaa-ruling-mean-2020-

21-college-basketball-season.

2021] Deflating Amateurism 351

The concept of a college basketball Bubble picked up steam

after reports broke that the NCAA filed a trademark for the

phrase “Battle in the Bubble.”

165

This idea received mixed re-

sponses within the college basketball community– supporters ar-

gued the Bubble could be a viable option

166

while opponents ar-

gued either it would be unworkable for college basketball

167

or the

costs associated make it unrealistic.

168

The more realistic option appears to be a quasi-Bubble or

“controlled environments.”

169

These modified versions of the NBA

Bubble that would operate in different places at different times.

Many cities and venues have already begun planning to host such

events: for example, the Mohegan Sun Casino in Connecticut,

170

ESPN’s Wide World of Sports Complex,

171

the MGM Grand and

Mandalay Bay in Las Vegas, and Indianapolis’s convention center

are the sites of planned large bubble events.

172

Additionally, tradi-

tional holiday tournaments are considering controlled environ-

ments as well as many individual universities.

173

165

See Wallace, supra note 8.

166

See College basketball bubble? NCAA considers adopting NBA’s approach for

‘20-21 season, F

OX SPORTS (Sept. 7, 2020), https://www.foxsports.com/midwest/story/

college-basketball-bubble-ncaa-considers-adopting-nbas-approach-for-20-21-season-

090720 (Quoting Mark Starsiak, vice president of sports at Intersport “[i]t’s certainly

viable… [f]rom a basketball standpoint, I think we can follow those models.”).

167

See Jeff Borzello, Bubbles, buy games and bid worries: Inside the frenzy to save

college basketball’s nonconference season, ESPN (Sep. 22, 2020), https://www.espn.com

/mens-college-basketball/story/_/id/29937616/bubbles-buy-games-bid-worries-frenzy-

save-college-basketball-nonconference-season (“[w]hile bubbles have been highly effec-

tive from the NBA and NHL… we won’t See them in college basketball.”).

168

Id. (Reporting statements made by Mercer Coach Greg Gary, “[w]e don’t have

the money to do what the NBA does,” and Director of tournaments for Basketball Trav-

elers, “[w]e can’t create what the NBA has done… [i]t’s just not conceivable, cost-

wise.”).

169

Id. (Crediting NCAA senior vice president of basketball Dan Gavitt with coining

the term “controlled environment.”)

170

See Matt Norlander, College basketball’s season could be saved in part by plans

for bubbles in big cities, CBS S

PORTS (Sep. 21, 2020), https://www.cbssports.com/

college-basketball/news/college-basketballs-season-could-be-saved-in-part-by-plans-for-

bubbles-in-big-cities/.

171

Id. (Reporting ESPN would move its events, The Champions Classic, Charleston

Classic, Myrtle Beach Invitational, NIT Season Tip-Off, Wooden Legacy, Orlando Invi-

tational, Jimmy V Classic, and the Diamond Head Classic to Orlando).

172

Id.

173

See Borzello, supra note 168.

352 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

These controlled environments could provide a solution for

potential scheduling, safety, and testing issues. The potential ben-

efits are apparent; however, the cost may not make it a realistic

option. Some reports have indicated that entry fees could exceed

$90,000.

174

Such a steep fee could prove difficult for institutions

and athletic departments experiencing sharp declines in revenue

and staff layoffs as a result of COVID-19.

175

For those who could afford to participate, venues have pro-

duced extensive plans to implement the proper safety procedures

to provide testing, lodging, food, officials, and almost any other

need. At the Mohegan Sun, officials have already implemented

safety measures, which they claim exceed any potential NCAA

guidelines.

176

They currently require masks constantly and have

temperature scanners in place at entrances.

177

Additional

measures planned for these events include placing teams on sepa-

rate hotel floors, providing access to routes around the property

that avoid the general public, and supplying separate spaces for

team meetings and meals.

178

Similarly, sites in Las Vegas and In-

dianapolis have proposed comparable plans.

179

The concept of a Bubble and a controlled environment have

already proven successful in various professional leagues includ-

ing the NBA, WNBA, and NHL. As the college basketball season

quickly approaches, those in power must decide if such an option

would best serve their interests. This question is a complicated

one due to logistics and public health concerns already complicat-

ed from a logistical and public health perspective. Intercollegiate

174

Id. (“The all-inclusive price starts at $90,000 per team and would cover 20 hotel

rooms per traveling party, testing, daily food vouchers ranging from $30-$50 and the

cost of game officials.”).

175

See Andy Uhler, College athletics departments cut pay, staff and teams because

of COVID, Market Place (Oct. 19, 2020), https://www.marketplace.org/2020/10/19/

college-athletics-departments-cut-pay-staff-and-teams-because-of-covid/.

176

See Borzell, supra note 168.

177

Id.

178

Id.

179

See Norlander, supra note 171. (Reporting in Las Vegas, organizers have said

their presentation states they will manage almost every aspect of the event from lodg-

ing, and transpiration, to securing and constructing the playing venues and securing

officials. They have also provided detailed safety protocol plans which include tempera-

ture checks, initial testing upon arrival, and at least every other day, and proper man-

agement and sanitization of all transportation, and facilities).

2021] Deflating Amateurism 353

athletics adds another layer to the effect that such an environ-

ment would have on the principle of amateurism.

III. THE CONFLICT BETWEEN COMMERCIAL INTERESTS

AND AMATEURISM

The conflicts between the commercial interest of modern in-

tercollegiate athletics and the NCAA’s principle of amateurism

call into question whether the primary motivation for participa-

tion is monetary or educational. Commercialization has trans-

formed intercollegiate athletics and consequently diminished the

importance of the athlete’s education.

At the offset, it is important to note the distinction between

Ivy League athletes, non-revenue sport athletes, and revenue

sport athletes.

180

Ivy League athletes do not receive athletic schol-

arships, nor do non-revenue athletes maintain the demanding

schedule of their revenue sport counterparts.

181

In these situa-

tions, the idea of amateurism –– playing for the love of the game –

– appears plausible.

182

Therefore, the conflict between commercial

interest and education does not exist, or is at least less relevant.

However, in the world of revenue sports, the billion-dollar econom-

ic landscape does not offer such hope.

A. Commercialization has transformed intercollegiate athletics

By any objective measure, intercollegiate athletics—

especially in the revenue-generating sports of basketball and foot-

ball—constitutes a big-money business.

183

The question is what

caused the transformation of intercollegiate athletics into some-

thing that looks much more like professional athletics than ama-

teur athletics? In short, commercialization.

Gone are the days of checking the local paper for the previous

night’s scores and being limited to watching the team whose

180

See Berger, 843 F.3d at 294 (Hamilton, J., concurring).

181

Id.

182

Id. (“With economic reality as our guide, as I believe it should be, there may be

room for further debate, perhaps with a developed factual record rather than bare

pleadings, for cases addressing employment status for a variety of purposes.”).

183

See NCAA Finances, USA Today, https://sports.usatoday.com/ncaa/finances/ (last

visited Dec 2, 2020); Where Does the Money Go? NCAA, http://www.ncaa.org/about/

resources/finances (last visited Dec 2, 2020).

354 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

games were broadcasted in one’s region. Today, technology domi-

nates. The rise of social media and streaming services now pro-

vides fans with access to every angle of intercollegiate athletics.

Sports reporters and beat writers now tweet out up to the minute

updates.

184

Fans pay for access to websites dedicated to tracking

the nation’s top recruits, offering insider updates and providing a

forum to discuss the latest news on their favorite team.

185

In recent years, commercialization has led the economic in-

dustry of intercollegiate athletics to flourish.

186

For example, lu-

crative television contracts fetch million-dollar price tags.

187

Addi-

tionally, commercialization has transformed the fan experience.

In college basketball, the annual postseason tournament,

March Madness, continues to be the NCAA’s largest revenue

source.

188

In 2010, the NCAA reached a fourteen-year broadcast-

ing agreement with CBS Sports and Turner Broadcasting valued

at $10.8 billion.

189

In 2016, the groups agreed to an eight-year ex-

tension valued at $8.8 billion.

190

The original agreement provides

an annual payout of $771 million, but the extended term will pay

out $1.1 billion.

191

During the 2018-2019 season, March Madness

generated around $868 million in revenue from television and

marketing rights, in addition to $178 million in ticket sales.

192

Advertisers — aware of March Madness’s’ widespread popularity

184

See generally Darren Rovell (@darrenrovell), https://twitter.com/darrenrovell

(last visited Dec. 2, 2020); Dan Wolken (@DanWolken), https://twitter.com/danwolken

(last visited Dec. 2, 2020).

185

See supra note 88.

186

See Will Hobson and Steven Rich, Playing in The Red: Big-time College athletic

departments are taking in more money than ever – and spending it just as fast. These

28 schools operated at a loss in 2014, Washington Post (Nov. 23, 2015),

https://www.washingtonpost.com/sf/sports/wp/2015/11/23/running-up-the-bills/.

187

See Ramogi Huma and Ellen J. Staurowsky, TV Money Windfall in Big Time

College Sports $784 Million Reasons for Reform, NCPA, https://www.ncpanow.org/

research/body/TV-Money-Windfall-in-Big-Time-College-Sports.pdf (last visited Dec. 2,

2020).

188

See Tim Parker, How Much Does the NCAA Make off March Madness? In-

vestopedia (Oct. 31, 2019), https://www.inestopedia.com/articles/investing/031516/

how-much-does-ncaa-make-march-madness.asp.

189

See Noah McGee, How Much money does the NCAA make from March Madness?

MSN (Feb. 6, 2020), https://www.msn.com/en-us/money/markets/how-much-money-

does-the-ncaa-make-from-march-madness/ar-BBZIYDV.

190

Id.

191

Id.

192

Id.

2021] Deflating Amateurism 355

— were willing to spend around $1.6 million for a thirty-second

commercial during the championship game.

193

Likewise, conferences and institutions have taken advantage

of the favorable media markets to launch exclusive television net-

works.

194

In 2007, the Big Ten Conference and Fox Networks

launched the Big Ten Network (also known as the “B1G Net-

work”).

195

In 2011, the University of Texas launched the Longhorn

Network, which provides hours of coverage of its varsity teams.

196

Additionally, in 2014, the Southeastern Conference (“SEC”) and

Entertainment and Sports Programming Network (“ESPN”)

teamed up to launch the ultra-successful SEC Network.

197

In 2017, the NCAA surpassed the billion-dollar mark for the

first time.

198

During fiscal year 2018-19, three institutions gener-

ated more than $200 million in revenue, and forty institutions

generated more than $100 million.

199

Notwithstanding increased

revenues, only twenty-five athletic departments were profitable in

2019.

200

All were members of a Power Five conference.

201

These

revenue shortfalls were not covered by donors or rainy-day funds

but rather by student fees.

202

193

See Wayne Friedman, March Madness Grows 5% in National TV Ad Dollars,

Ratings Down, MediaPost (April 3, 2018), https://www.mediapost.com/publications/

article/317061/march-madness-grows-5-in-national-tv-ad-

dol-

lars.html#:~:text=SQAD%2C%20the%20media%20cost%20and,ranged%20between%20

%241%2C387%2C933%20and%20%241%2C660%2C956.

194

See supra note 84.

195

Id.

196

Id. See also Gracie Blackburn-Evans, Five things to know about Longhorn Net-

work on its fifth anniversary, ESPN Front Row (Aug. 26, 2016), https://www.espn

frontrow.com/2016/08/five-things-to-know-about-longhorn-network-on-its-fifth-

anniversary/.

197

See Jason Morton, Five years on, student-athletes made SEC Network a success,

Tuscaloosa News (Aug. 18, 2019), https://www.tuscaloosanews.com/news/20190818/

five-years-on-student-athletes-made-sec-network-successgoo.

198

See Steve Berkowitz, NCAA reports revenues of more than $1 billion in 2017,

USA T

ODAY (Mar. 7, 2018) https://www.usatoday.com/story/college/2018/03/07/ncaa-

reports-revenues-more-than-1-billion-2017/402486002/ (Reporting the NCAA 2017

revenue as $1.06 billion).

199

See supra note 184.

200

See Finances of Intercollegiate Athletics, NCAA, https://www.ncaa.org/about/

resources/research/finances-intercollegiate-athletics (Last visited Nov. 17, 2020)

201

Id.

202

Id.

356 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

Commercialization has resulted in a proverbial arms race as

institutions strive to maintain the highest level of competition and

success.

203

Coaching salaries continue to soar as basketball and

football head coaches command multi-million-dollar salaries,

204

and even some top tier assistant coaches drawing more than one

million dollars.

205

Institutions pour hundreds of millions into their

facilities,

206

including adding high dollar luxury club areas for do-

nors.

207

Massive recruiting budgets and the use of private jets and

203

See Jake New, Banking on the Big Five, Inside Higher Ed (Aug. 15, 2016),

https://www.insidehighered.com/news/2016/08/15/colleges-increase-athletic-spending-

hopes-joining-power-five?utm_source=inside+higher+ed&utm_campaign=89092157d1-

dnu201608015&utm_medium=email&utm_term=0_1fcbc04421-89092157d1-

197414985&mc_cid=89092157d1&mc_eid=1ab0ee503b.

204

See Erik Brady et al, College football coaches continue to See salary explosion,

USA Today (Nov 20, 2012), https://www.usatoday.com/story/sports/ncaaf/2012/11/19/

college-football-coaches-contracts-analysis-pay-increase/1715435/; Steve Berkowitz and

Tom Schad, 5 surprising findings from college football coaches salaries report, USA

Today (Oct. 15, 2020), https://www.usatoday.com/story/sports/ncaaf/2020/10/14/college-

football-coaches-salaries-five-surprising-findings-data/5900066002/ (Showing in 2006,

head coaches at 42 major programs made at least $1 million. In 2012, at least 42

coaches made at least $2 million. For the 2020-21 season, the average pay for all FBS

coaches was $2.7 million. Alabama head coach Nick Saban will make $9.3 mill for the

season, while Clemson head coach Dabo Swinney will make $8.3 million.); Laura

McKenna, The Madness of College Basketball Coaches’ Salaries, The Atlantic (Mar. 24,

2016), https://www.theatlantic.com/education/archive/2016/03/the-madness-of-college-

basketball-coaches-salaries/475146/.

205

See NCAA Salaries, USA Today, https://sports.usatoday.com/ncaa/salaries/

football/assistant. (Last visited Nov. 17, 2020) (Showing in 2019, the two highest said

assistant coaches were Louisiana State University’s Dave Aranda, who made $2.5 mil-

lion, and Clemson’s Brent Venables who made $2.2 million. While the top 24 coaches

all took home at least $1.0 million.).

206

See John Duffley, Kyle Field’s $450 Million Upgrade in Mesmerizing 1-Minute

Video, FanBuzz (Sept. 2, 2020), https://fanbuzz.com/college-football/sec/enjoy-this-time-

lapse-of-the-entire-kyle-field-reconstruction-project-for-tbt/ (Explaining in 2013, Texas

A&M approved a $485 million plan to increase the capacity of its stadium from 82,589

to 102,500.); Austin Miller, Ole Miss Releases First Phase of Renovation, Expansion

Plans for Vaught-Hemingway, Ole Miss (Aug. 7, 2014), https://olemisssports.com/news/

2014/8/7/Ole_Miss_Releases_First_Phase_of_Renovation_Expansion_Plans_for_Vaught

_Hemingway; Thom Patterson, America’s incredibly expensive college football stadi-

ums, CNN (Sept. 28, 2018), https://www.cnn.com/2018/09/28/us/expensive-college-

football-stadiums/index.html (Showing Notre Dame spent $400 million to update its

stadium adding new seating, a large video board, as well as improvements to the Wi-Fi,

lighting, and press box. The University of Tennessee projected a cost of $340 million for

renovations to their entry gates and towers, as well as an expansion to the south con-

course.).

207

See supra note 207.

2021] Deflating Amateurism 357

helicopters allow coaches to crisscross the country courting top

recruits.

208

More recently the effects of commercialization have opened

up the possibility of athletes being able to profit off of intercolle-

giate athletics as well. In 2020, the NCAA Board of Governors of-

fered its support for a proposed rule change allowing athletes to

receive financial benefits from the use of their name, image, and

likeness (“NIL”).

209

Although the proposal still awaits final ap-

proval from each of the three NCAA divisions, it moves the NCAA

one step closer to granting the very relief Edward O’Bannon

sought in federal court six years prior.

The new rules, if passed, generally allow athletes to receive

compensation from the use of their NIL.

210

Permissible compensa-

tion can include endorsing third-party products, engaging in social

media influencing, as well as autographs signing events among

others.

211

However, these rules do provide limits on earnings.

212

Furthermore, the rules do prohibit the use of conference and insti-

tutional logos in such activities.

213

They also prohibit institutional

involvement in facilitating or making such payments or using the

process to hide payments for participation.

214

The sudden shift in favor of athletes being compensated for

their NIL was not the result of any goodwill. Rather, the NCAA

found itself squarely in the crosshairs of state legislatures —

namely California, Colorado, Florida and Nebraska — that have

208

See David Ching, For Colleges, Spending Big On Recruiting Does Not

Necessarily Translate To All-Sports Success, Forbes (Jun. 5, 2018), https://www.

forbes.com/sites/davidching/2018/06/05/spending-big-on-recruiting-does-not-

necessarily-translate-to-all-sports-success/?sh=6861724b7044; Tom Schad, As salaries

soar, so do more college football coaches with personal access to private planes, USA

Today (Oct. 24, 2019), https://www.usatoday.com/story/sports/ncaaf/2019/10/23/college-

football-more-coaches-being-given-access-private-planes/3984675002/.

209

See Barrett Sallee and Adam Silverstein, NCAA takes big step toward allowing

name, image and likeness compensation for athletes, CBS Sports (Apr. 29, 2020),

https://www.cbssports.com/college-football/news/ncaa-takes-big-step-toward-allowing-

name-image-and-likeness-compensation-for-athletes/.

210

Id.

211

Id.

212

Id.

213

Id.

214

Id.

358 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

enacted laws allowing such compensation.

215

Even Congress has

entered the debate with NIL being filed in the recent session.

216

In an effort to receive favorable outcomes, the NCAA and

Power Five conference have expended hundreds of thousands of

dollars to curtail the legislation. Reporting indicates that in 2019

lobbying expenses by the NCAA and some Power Fives Conference

totaled $750,000.

217

In 2020, with a global pandemic raging, the

Power Five had already made $350,000 in lobbying expendi-

tures.

218

Such behavior is difficult to comprehend since the NCAA

and its member institutions assert that education is the primary

focus.

Increased commercialization has transformed intercollegiate

athletics. The word “amateur” no longer invokes images of Francis

Ouimet striding down the fairways at The Country Club with his

ten-year-old caddie in tow. Instead, thoughts turn to crisp fall

evenings in Vaught-Hemingway

219

, Jordan-Hare

220

, or The Big

House

221

with each stadium filled with fifty thousand plus fans

playing live on national television. But these grand stages for ath-

letics did not pay for themselves, instead money generated by in-

tercollegiate athletics — which one might think would go towards

the primary goal of education — in addition to some hefty loans,

paid for these magnificent stadiums. Commercialization has also

created the opportunity for athletes to potentially profit from their

athletic participation — a direct violation of the term “amateur” —

further diminishing the importance of education.

215

See Kristi Dosh, NAIA Becomes First in College Sports to Pass Name, Image

and Likeness Legislation, Forbes (Oct. 7, 2020), https://www.forbes.com/sites/

kristidosh/2020/10/07/naia-becomes-first-in-college-sports-to-pass-name-image-and-

likeness-legislation/?sh=219679b411aa.

216

See Sam Cooper, Power Five conferences spending big money behind the scenes

to lobby Congress on NIL legislation, Yahoo Sports (May 19, 2020), https://sports.

yahoo.com/power-five-conferences-spending-big-money-to-lobby-congress-on-nil-

legislation-195843763.html.

217

Id.

218

Id.

219

Vaught-Hemingway Stadium, located in Oxford, Mississippi, is the home of the

University of Mississippi football team.

220

Jordan-Hare Stadium, located in Auburn, Alabama, is the home of the Universi-

ty of Auburn football team.

221

The Big House, formerly known as Michigan Stadium, located in Ann Arbor,

Michigan, is the home of the University of Michigan football team.

2021] Deflating Amateurism 359

B. Increased commercialization diminishes the importance of

education

Increased commercialization has relegated education — the

supposed primary motivation underpinning the NCAA’s principle

of amateurism — to a secondary concern. The majority of athlete’s

time is now dedicated to athletics, institutions cut academic cor-

ners and overlook illegal behavior in favor of athletic benefits.

The NCAA rules limit participation in athletic activities to no

more than four hours a day and twenty hours a week.

222

Neverthe-

less, studies suggest many revenue sports athletes often spend

forty hours or more per week on athletics.

223

NCAA limitations fail

to account for time spent outside of formal activities to watch film;

to work out; to travel to and from athletic events and to partici-

pate in competitions.

224

As a result, the modern athletic structure

leaves minimal time for academics.

Such time constraints impair an athlete’s ability to maintain

an educational focus. For example, time limits restrict athletes’

choices of majors and classes.

225

These demands lead athletes to

“cluster” into specific majors and courses taught by athlete

“friendly” professors.

226

Furthermore, such demanding schedules lead athletes to lean

on academic support staff and tutors to complete classes.

227

In-

stead of academic tutors assisting athletes in learning the course

222

See NCAA Division I Manual, supra note 4, §17.1.7.1.

223

See supra note 90.

224

See NCAA Division I Manual, supra note 4, §17.1.7.1 (Explaining limitations of

four hours a day and twenty a week apply only to “countable activities,” which under

§17.02.1 is defined as “…any required activity with an athletics purpose involving stu-

dent-athletes and at the direction of, or supervised by, one or more of an institution’s

coaching staff…”).

225

See Berry, Educating Athletes, supra note 91, 814-17.

226

See id.

227

See Doug Lederman, Concerns about Clustering, Inside Higher Ed (Nov. 20,

2008), http://www.insidehighered.com/news/2008/11/20/cluster; Mark Dent, Michael

Sanserino & Sam Werner, Do Colleges Drop the Ball with Student-Athletes?

Pittsburgh Post-Gazette (May 31, 2014), http://www.post-gazette.com/sports/college/

2014/06/01/Do-colleges-drop-the-ball-with-student-athletes/stories/201406010120; Joy

Gaston Gayles & Shouping Hu, The Influence of Student Engagement and Sport Par-

ticipation on College Outcomes Among Division I Student Athletes, 80 J. Higher

Educ. 315 (2009); Joshua Castle, Robin Ammon & Les Myers, The 9 Credit Rule: A

Look at Its Impact on Academic Advising for Intercollegiate Football Athletes, 5 J.

Physical Educ. Sports Mgmt. 59 (2014).

360 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

material, they often just completed the work for them. The result-

ing reality is that while an athlete may ultimately receive a di-

ploma, they may have no received an education

228

If necessary,

some institutions are willing to take additional shortcuts.

These are not merely the abstract effects of increased com-

mercialization, but the real-life consequences felt by athletes. For

example, in a 2015 lawsuit stemming from the fraudulent classes

offered by the University of North Carolina the athletes argued

they were deprived of a meaningful education.

229

Obstacles to attaining a meaningful education are exacerbat-

ed when institutions willingly commit academic fraud. The Uni-

versity of North Carolina provides the most egregious example.

230

An investigation found they offered sham classes for almost two

decades.

231

These classes often never met in person and required

only the submission of one short paper.

232

Moreover, some classes

had no assigned professor, and the department secretary graded

the papers.

233

The University of North Carolina is not the lone culprit. The

final exam for a class taught by a University of Georgia assistant

basketball coach included questions such as “[h]ow many points is

a 3-pointer worth?”

234

Likewise, Syracuse University academic

assistance staff used athletes’ personal login information to sub-

mit their assignments for them.

235

Similarly, academic tutors at

228

Id. (Analyzing problems that compromise academic education: clustering of ma-

jors, pressures of eligibility requirements, athletic participation as a full-time occupa-

tion, and the reality that just because an athlete receives a diploma does not mean they

received an education.).

229

See Peter Jacobs, Former UNC Student-Athletes Detail Fake “Paper Classes” In

New Lawsuit Against School And NCAA, Business Insider (Jan 23, 2015),

https://www.businessinsider.com/lawsuit-against-unc-over-paper-classes-2015-1 (The

athletes sued on the grounds they had been deprived of a “meaningful education.”);

Lynn O’Shaughnessy, Do College Athletes Have Time to be Students? CBS News (Feb.

18, 2011), http://www.cbsnews.com/news/do-college-athletes-have-time-to-be-students/;

David Moltz, How Athletes Spend Their Time, Inside Higher Ed (Feb. 14, 2011),

https://www.insidehighered.com/news/2011/02/14/how-athletes-spend-their-time.

230

See Gregory, supra note 94.

231

Id.

232

Id.

233

Id.

234

See Coach Gave Every Student an A, ESPN (Mar. 4, 2004), http://espn.go.com/

ncb/news/story?id=1750279.

235

See Jon Solomon, What Syracuse’s NCAA Case Revealed About Academic

Fraud, CBS Sports (Mar. 7, 2015), http://www.cbssports.com/collegefootball/writer/

2021] Deflating Amateurism 361

the University of Minnesota completed an estimated 400 assign-

ments for athletes over a four-year period.

236

More recently, an

investigation found that University of Missouri athletic tutors

completed class work for twelve athletes, including completing all

of a class for one athlete and the vast majority for numerous oth-

ers.

237

Increased commercialization further diminishes the im-

portance of education when it leads institutions to engage in or

cover up illegal behavior. In 2011, abuse allegations against for-

mer Pennsylvania State University football defensive coordinator

Jerry Sandusky rocked the sporting world.

238

Prosecutors alleged

Sandusky abused numerous young boys from 1994 to 2009, with

the abuse occasionally occurring at the University’s own athletic

facilities.

239

The allegations resulted in the ouster of Legendary

Coach Joe Paterno and University President Graham Spanier.

240

Sandusky was ultimately convicted and further sentenced to thir-

ty to sixty years in prison.

241

The University hired former FBI Director Louis Freeh to

conduct an independent investigation into the University’s han-

dling of the matter.

242

His report found that University leaders

showed “‘total and consistent disregard’ for the child victims while

covering up the attacks of a longtime sexual predator.”

243

Addi-

tionally, the NCAA handed down stiff penalties to the University,

including a $60 million fine, a four-year postseason ban, the re-

moval of twenty scholarships, and the annulment of all wins for

the 1998 through 2011 seasons.

244

However, two years later, the

NCAA removed the postseason ban and scholarship limitations.

245

jonsolomon/25096871/what-syracuses-ncaa-case-revealed-about-academic-fraud.

236

See Minnesota Put on 4-Year Probation, CBS News (Oct. 24, 2000), https://www.

cbsnews.com/news/minnesota-put-on-4-year-probation/.

237

See Cameron Teague-Robinson, NCAA penalizes MU athletics for academic

fraud, Columbia Daily Tribune (Jan. 31, 2019), https://www.columbiatribune.com/

sports/20190131/ncaa-penalizes-mu-athletics-for-academic-fraud.

238

See Penn State Scandal Fast Facts, CNN (Jul. 1, 2020), https://www.cnn.com/

2013/10/28/us/penn-state-scandal-fast-facts/index.html.

239

Id.

240

Id.

241

Id.

242

Id.

243

Id.

244

Id.

245

Id.

362 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

In 2018, following an investigation, the NCAA stripped the

University of Louisville Men’s basketball program of its 2013 na-

tional championship.

246

The investigation found that the team’s

staff had arranged hotel rooms for players and recruits to meet

with prostitutes.

247

More recently, the Department of Justice (“DOJ”) announced

that a two-year investigation by the Federal Bureau of Investiga-

tion (“FBI”) uncovered pay-for-play schemes involving coaches,

corporate executives, and sports agents.

248

As a result, numerous

Division I men’s basketball programs, including traditional blue-

blood powerhouses, face potential penalties for violations of NCAA

rules.

249

In response to the DOJ’s announcement, NCAA President

Mark Emmert said, “[t]hese allegations, if true, point to systemat-

ic failures that must be fixed and fixed now if we want college

sports in America.”

250

Further, Emmert announced the formation

of the Independent Commission on College Basketball, chaired by

former United States Secretary of State Condoleezza Rice.

251

The

commission was tasked with proposing solutions to clean up the

sport.

252

While well-intentioned, Emmert’s response failed to address

the overarching problems. The NCAA continues to argue, as it

long has, that its existence is necessary to protect the integrity of

intercollegiate athletics. Yet, the record reflects a glaring inability

to effectively police member institutions and a failure to uphold its

own principle of amateurism.

246

See Marc Tracy, Louisville Must Forfeit Basketball Championship Over Sex

Scandal, T

HE NEW YORK TIMES (Feb. 20, 2018), https://www.nytimes.com/2018/02/20/

sports/ncaabasketball/louisville-ncaa-title.html.

247

Id.

248

See Aaron Moody, Here’s a master guide to the college basketball corruption

scandal and FBI investigation, The News&Observer (Oct 26, 2018), https://www.newso

bserver.com/sports/article208880939.html.

249

See id; See also Report: FBI probe into NCAA corruption identifies possible vio-

lations by basketball powers, ESPN (Feb. 23, 2018), https://www.espn.com/mens-

college-basketball/story/_/id/22553502/fbi-probe-corruption-reveals-basketball-powers-

broken-ncaa-rules (Naming Duke, North Carolina, Kentucky, Michigan State, and

Kansas as involved universities).

250

See NCAA statement on Yahoo! Sports story, NCAA (Feb. 23, 2018), https://

www.ncaa.org/about/resources/media-center/news/ncaa-statement-yahoo-sports-story.

251

Id.

252

Id.

2021] Deflating Amateurism 363

The effects of increased commercialization evidence the di-

minished importance of the athlete’s education. Athletic demands

can limit the major they pursue or classes they take. Additionally,

athletes spend significantly more time devoted to athletics than

academics. Which causes the time they do actually spend on aca-

demics to be used for just keeping up instead of learning. Fur-

thermore, increased commercialization has led institutions to cut

academic corners, further diminishing the importance of educa-

tion, as well as to engage in illegal behavior or the covering up of

such.

This conflict between commercial interests and education

casts doubts upon the viability of the NCAA’s principle of ama-

teurism and necessary existence to protect it. One foundational

element to the NCAA’s principle is the need to protect athletes

from exploitation by commercial interest. The reality though is the

NCAA may be aiding in doing just that. The billion-dollar industry

brought about by commercialization damages the claim that no

economic market exists in intercollegiate athletics and the ama-

teurism underpinnings of intercollegiate athletics.

253

The NCAA’s

defense of its principle of amateurism grows more tenuous with

each additional failure.

IV. COLLEGE BASKETBALL’S BUBBLE CONSIDERATION

UNDERMINES THE NCAA’S PRINCIPLE OF AMATEURISM

The NCAA’s principle of amateurism is founded on the idea

that college athletes’ motivations for participating in intercolle-

giate athletics are education and the moral benefits that can be

derived. Further, the NCAA claims it exists to protect this princi-

pal by preventing the professional or commercial exploitation of

college athletes. Yet the NCAA’s reaction to the COVID-19 out-

break including developing a “Bubble” or controlled environment

and trademarking phrases related to COVID-19 undermines their

own principle of amateurism.

In reality, the NCAA does more to undermine its principle of

amateurism then it does to protect it. As the previous section il-

lustrated commercialization has eroded the educational aim of in-

253

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85,

109 (1984).

364 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

tercollegiate athletics. The truth of the matter is amateurism val-

ues do not drive intercollegiate athletics, money does.

If any doubt remains, current events render it moot. In the

midst of COVID-19, the NCAA’s focus is not on assisting athletes

through this trying time or ensuring they continue to receive a

meaningful education. Instead, the NCAA is focused on protecting

its bottom line and maintaining its control over intercollegiate

athletics. Such actions directly undermine the NCAA’s principle of

amateurism.

For example, when COVID-19 forced the NCAA to cancel the

2020 edition of March Madness they began planning to ensure the

2021 edition could occur and they began exploring avenues to cap-

italize financially off the outbreak. The NCAA, its member institu-

tions and stakeholder began discussing the option of implement-

ing the Bubble used by the NBA or a similar controlled environ-

ment.

Consideration of an NBA style Bubble or similar controlled

environment shows the mockery the NCAA’s principle of amateur-

ism has become. Either option would take players out of the class-

room and away from their institution’s campus. Furthermore, it

exacerbates the already widening divide in the attention paid to

athletics over education. In turn further attenuating the link be-

tween athletics and amateurism and strengthening the proverbial

link between athletics and money.

Additional evidence undermining the NCAA’s principle of

amateurism surfaces in their response to being forced to cancel

March Madness in 2020. As ESPN reported “the NCAA is dead set

on hosting a tournament [in 2021] as it lost $375 million due to

last year’s tournament cancellation.”

254

To ensure this occurred

the NCAA announced the upcoming March Madness tournament

will be conducted in one location as opposed to the traditional

format of using numerous locations.

255

Which the NCAA argued is

necessary because of logistical and health concerns related to

COVID-19.

256

While these are legitimate concerns, they are not

254

See Joseph Choi, NCAA in talks to hist all of March Madness in Indianapolis,

The Hill (Nov 16, 2020), https://thehill.com/blogs/in-the-know/in-the-know/526173-

ncaa-in-talks-to-host-all-of-march-madness-in-indianapolis.

255

See id.

256

See id.

2021] Deflating Amateurism 365

the NCAA’s only concerns. Instead, the NCAA is concerned with

the annual $771 million payout they receive per their broadcast-

ing agreement, and the estimated $1.6 million they can collect per

30 second commercial during the championship game.

257

Furthermore, the NCAA undermines its principle of amateur-

ism not only by responding to the COVID-19 outbreak by looking

into implementing an NBA style Bubble, but also by filing trade-

marks to make money off of phrases tying COVID-19 and intercol-

legiate athletics together. In August 2019, the NCAA filed a

trademark for the phrase “Battle of the Bubble” sparking public

debate over the use of a Bubble for college basketball.

258

Addition-

ally, in December 2019 the NCAA — apparently picking up on the

suggestion of ESPN commentator Jay Bilas — filed a trademark

for the phrase “Mask Madness.”

259

The NCAA’s principle of amateurism anticipates “amateurs”

who attend institutions primarily to attain an education —

competing in intercollegiate athletics for the love of the game and

its moral benefits. The consideration of the NBA style Bubble,

plan to conduct March Madness in a controlled environment, and

attempt to profit off of the COVID-19 outbreaking by trademark-

ing phrases tying it to the athletic are the antithesis of the ama-

teurism model. On the contrary, these actions give intercollegiate

athletics the appearance of professional athletics instead of ama-

teur athletics.

V. FUTURE IMPLICATIONS — THE POWER FIVE

BREAKAWAY AND THE SUPREME COURT

There are two immediate threats to the NCAA’s control of in-

tercollegiate athletics: COVID-19 and the opportunity it provides

to the Power Five conferences to repeat history and breakaway

257

See supra note 192.

258

See Dylan Wallace, NCAA Files Trademark for “Battle in the Bubble, FanNation

(Aug. 31, 2020), https://www.si.com/college/indiana/basketball/ncaa-filed-trademark-

for-battle-in-the-bubble.

259

See Joe Kinsey, NCAA Files Trademark For ‘Mask Madness’ to go with ‘Battle in

the Bubble,’ Outkick (Dec. 28, 2020), https://www.outkick.com/ncaa-files-trademark-

for-mask-madness-to-go-with-battle-in-the-bubble/ (reporting that ESPN commentator

Jay Bilas jokingly wondered if the NCAA would try to trademark the phrase “Mask

Madness” following their filing of a trademark for the phrase “Battle in the Bubble”

months earlier).

366 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

from the NCAA in basketball and the Supreme Court’s impending

review of the NCAA’s amateurism rules.

The threat COVID-19 poses to the NCAA model leaves the

noteworthy question of what the future might look like for inter-

collegiate athletics. To what extent will the Power Five confer-

ences be open to the NCAA model going forward or any proposed

changes? On the other hand, does the ever-loosening grip of the

NCAA’s power, combined with the threat of COVID-19, present

the opportunity for the Power Five conferences to seize control?

Prior to the outbreak, the NCAA’s role in intercollegiate ath-

letics already appeared to be on borrowed time. That is, their ne-

cessity had long ago been called into question, public perception

continued to trend downward. Because of the COVID-19 outbreak

the NCAA was forced to cancel March Madness leaving them

without their largest revenue generator. The already tenuous na-

ture of their existence and subsequent crumbling financial posi-

tion has left them somewhat defenseless to the Power Five’s disre-

gard for their authority.

In reality COVID-19 presents the perfect opportunity for the

Power Five conferences to break away from the NCAA as they did

in football in 2014. If there is a way to take for themselves the

vast financial fortunes of March Madness, without the NCAA or

non-power five institutions’ involvement, history may very well

repeat itself in an environment driven by money.

For decades, the NCAA controlled college football similarly to

how it currently controls college basketball. This control came un-

done when the Supreme Court struck down the NCAA’s ability to

determine which teams played on television each year or to penal-

ize teams who attempted to enter into their own outside broad-

casting deals with networks.

260

As a result, conferences and teams

were set free to make their own agreements and sell broadcasting

rights to the highest bidders. Conferences and institutions quickly

seized the opportunity. The decision also rendered the NCAA es-

sentially unable to impose its own form of post-season champion-

ship system in the sport.

Over the years, various formats have attempted to fill the

void of a post-season championship system. However, in 2014 the

260

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85

(1984).

2021] Deflating Amateurism 367

Bowl Championship Series (“BCS”) gave way to the College Foot-

ball Playoff (“CFP”).

261

That same year, the largest five confer-

ences — ACC, Big Ten, Big 12, Pac-12 and SEC — broke away,

thereby forming the Power Five.

262

The Power Five were granted “autonomy” from the NCAA,

which allowed the Power Five to set up their own rules.

263

These

new rules increased the cost of attendance allowance, provided

stipends to athletes who participated in summer athletic activi-

ties, allocated additional funding for mental health resources, and

set rules to give athletes more free time away from mandatory

sports requirements.

264

The enormous power wielded by the Power Five conferences

is reflected in their payout from the CFP.

265

While the other

leagues’ split $75 million in the first year of the event, each Power

Five conference took home $50 million each. This is for good rea-

son though, considering that they have essentially taken a monop-

olistic position in the CFP. To date, no team outside of the Power

Five has been selected to participate – not even an undefeated

one.

266

The CFP remains wildly popular among fans and continues

to generate millions in revenue, especially for the Power Five con-

ference. This phenomenon has taken place without the involve-

ment of, or necessity to split revenue with, the NCAA.

261

See Brett McMurphy, Arlington to host title game, ESPN (Apr. 23, 2018),

https://www.espn.com/college-football/story/_/id/9204021/arlington-texas-host-first-

college-football-playoff-championship.

262

See Brian Bennett, NCAA board votes to allow autonomy, ESPN (Aug. 7, 2014),

https://www.espn.com/college-sports/story/_/id/11321551/ncaa-board-votes-allow-

autonomy-five-power-conferences.

263

Id.

264

Id. See also Will Vandervort, Power 5 Conferences approve new rules that will

affect student athletes, The Clemson Insider (Jan. 24, 2019), https://www.theclemson

insider.com/2019/01/24/power-5-conferences-approve-new-rules-that-will-affect-

student-athletes/.

265

See George Schroeder, Power Five’s College Football Playoff revenues will dou-

ble what BCS paid, USA Today (Jul. 16, 2014), https://www.usatoday.com/story/

sports/ncaaf/2014/07/16/college-football-playoff-financial-revenues-money-distribution-

bill-hancock/12734897/.

266

See Joel Reuter, Making a Playoff Case for Every Non-Power 5 Team in the Top

25, Bleacher Report (Nov. 24, 2020), https://bleacherreport.com/articles/2919440-

making-a-playoff-case-for-every-non-power-5-team-in-the-top-25.

368 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1

The Power Five Conferences wasted no time flexing their

muscle by warning the NCAA that should fall sports or champion-

ships be cancelled, they will host them.

267

Such an antagonistic

position offers a clear indication of the rapidly waning patience

the Power Five have for the NCAA or its rules.

If the Power Five successfully broke away from the NCAA,

and thus non-power five institutions took home more money in the

process, why should they not do it in basketball? The NCAA finds

itself in a compromising situation. As the NCAA’s principle of am-

ateurism continues to deteriorate grip on intercollegiate athletics

continues to slip. The NCAA should see the writing on the wall: it

must tread carefully, especially in dealing with the Power Five.

Current circumstances have presented the Power Five con-

ferences to seize complete control of their athletics, and it appears

the Power Five conferences are ready to pounce. If there is a way

to take for themselves the vast financial fortunes of March Mad-

ness, without the NCAA or non-power five institutions’ involve-

ment, history may very well repeat itself in an environment driv-

en by money.

The second imminent threat to the NCAA model arose on De-

cember 16, 2020 when the Supreme Court granted petitions for

writs of certiorari in two cases NCAA v. Alston and American Ath-

letic Conference v. Alston. The cases were consolidated under

NCAA v. Alston.

268

The general question being presented to the

Court is whether the NCAA’s amateurism rules violate antitrust

law.

The question presented in the first case is “[w]hether the

Ninth Circuit erroneously held, in conflict with decisions of other

circuits and general antitrust principles, that the National Colle-

giate Athletic Association eligibility rules regarding compensation

of student-athletes violate federal antitrust law.”

269

The question

presented in the second case is “[w]hether the Sherman Act au-

thorizes a court to subject the product-defining rules of a joint

267

See Dennis Dodd, Power Five, NCAA are now officially adversaries, and a

breakaway may only be a matter of time, CBS Sports (Aug. 3, 2020), https://www.cbssp

orts.com/college-football/news/power-five-ncaa-are-now-officially-adversaries-and-a-

breakaway-may-only-be-a-matter-of-time/.

268

Id.

269

In re National Collegiate Athletic Association, 958 F.3d 1239 (9

Cir. 2020), cert

granted, 2020 WL 7366281

2021] Deflating Amateurism 369

venture to full Rule of Reason review, and to hold those rules un-

lawful if, in the court’s view, they are not the least restrictive

means that could have been used to accomplish their procompeti-

tive goal.”

270

The Supreme Court’s ruling could determine the NCAA’s fu-

ture role in intercollegiate athletics.

CONCLUSION

Over the past decade, the role of the NCAA and the principle

of amateurism has found itself in the center of the public debate

over the appropriate compensation for college athletes. At the

heart of this question is the debate over whether intercollegiate

athletics is driven by amateurism values or by money.

This note has explored the question at the heart of this de-

bate: whether intercollegiate athletics is driven by amateurism

values or by money. Specifically, this note has analyzed the evolv-

ing definition of amateurism, the commercialization of intercolle-

giate athletics, and the use of a Bubble to ensure that March

Madness can occur. Finally, this note has argued that the answer

to this central question is that money drives intercollegiate athlet-

ics and not amateurism values. This note concludes by considering

the two immediate threats to the NCAA’s control of intercollegiate

athletics: COVID-19 and the opportunity it provides to the Power

Five conferences to repeat history and breakaway, as well as the

Supreme Court’s imminent review of the NCAA’s amateurism

rules viability under antitrust law.

270

In re National Collegiate Athletic Association, 958 F.3d 1239 (9

Cir. 2020), cert

granted, 2020 WL 7366279

370 MISSISSIPPI SPORTS LAW REVIEW [VOL. 10:1