Tad Stryker: Far More Losers Than Winners in House v. NCAA

Litigation has college sports on the brink of massive unintended consequences for all but a select few. Where are the leaders who can step forward and spare us from an untamed Wild West?

Widespread program cutting appears to be in the future for Wyoming and hundreds of programs like it. / Bruce Thorson-USA TODAY Sports

College athletics, which for the past half century have been available to hundreds of thousands of young men and women, are on the verge of a severe contraction — a gigantic reduction of opportunity — caused by a myopic stampede to a misguided, wrongly applied standard of “fairness.”

If you believe that college sports should never have evolved beyond the club stage, you should be ecstatic. If your idea of college sports is a few dozen enthusiasts in their late teens and early twenties sweating together on the campus green on a gorgeous weekend afternoon with their friends and families casually watching from the sidelines, and maybe passing the hat for donations to pay the referee, you’ll love the way things are headed.

An ongoing nationwide misappropriation of the Sherman Antitrust Act, which has promoted the Wild West environment being instilled into the highest levels of intercollegiate competition, led to the May 23 antitrust settlement among the Power Five conferences and the NCAA to allow schools to directly pay millions of dollars to current college athletes, and to create a limited collective class of past athletes also eligible to receive direct payments, will almost certainly have that regressive effect if nothing is done to check it. And unfortunately, recent history tells us the proposed distribution of funds likely will be neither just nor widespread. The power, and money, will be concentrated into the hands of relatively few.

Theodore Roosevelt, the trust-buster who put teeth into the 1890 law, wouldn’t have endorsed this power grab, nor would he have bought into the logic. The Sherman Act was not written to reward a few, and allow the rich to get richer. It was established to keep competition alive, not to run the little guy out of the game. Now it’s being invoked to systematically increase the gap between the haves and the have-nots, something TR would not have signed onto.

Proponents of House v. NCAA and many related lawsuits in the past decade point to what they would categorize as the past abuses of the NCAA, which for years refused to share any revenue with athletes. Their short-sighted focus was completely on the richest of the rich schools, where major-college football and basketball games fill stadiums and arenas and draw millions of television viewers. The people who talk about exploitation and equity seem to think that everyone who has played college sports over the past century has done so in front of huge crowds, bringing in untold piles of cash for their administrative masters to hoard and inequitably distribute to a few lucky coaches and athletic directors. They relish the thought of destroying the student-athlete model, and making employees of college athletes.

Despite all its faults, it’s a real stretch to compare the NCAA to John D. Rockefeller and Standard Oil, who worked to fix prices and guarantee huge profits by restricting access to the oil industry for their smaller competitors. Conversely, the NCAA built a multi-tiered organization of amateur sports leagues that has enabled millions of student-athletes to enjoy the team- and character-building benefits of organized competition at a high level.

Truth is, the majority of college student-athletes compete in relative obscurity, generating insufficient income to even pay expenses for their own sport, while moneymakers like football serve mainly to fund the low-revenue sports. Even at Nebraska, one of the few athletic departments in the nation to annually turn a profit, athletic director Troy Dannen recently said his programs will have to find new sources of income in order to pay an estimated $20 million annually to its athletes. Imagine what lengths Big 12 or ACC schools will have to go to just to keep up with the Joneses. Obviously there have been abuses by the NCAA, which for decades denied athletes legitimate NIL revenue, and was unable to stop multiple under-the-table payments that House will now legalize. Where today’s do-gooders miss the boat is thinking that they are righting past wrongs for everyone, when actually, their inability to grasp economic realities will quash the opportunity to receive those direct payments for all but the very elite.

It doesn’t create equity to deny athletic opportunities to young men and women born in the 21st century just so you can stick it to an organization that made some wrong decisions in the 20th century.

Until Congress grants college athletics the same type of antitrust exemption that professional sports have, actions like this will actually do the opposite of its original intent, which is to preserve a competitive marketplace. Back in August 2020, at the height of the COVID-19 pandemic, a group of Nebraska football players represented by Mike Flood filed suit against the Big Ten to stop the cancellation of the fall football season — in effect, to allow them to compete. One wonders if Flood, now a congressman from Nebraska, will will lead a similar effort on the legislative side to ensure access to college sports to thousands of future athletes, something very much threatened by the May 23 settlement.

Why all the fuss about this settlement? After all, it will help Nebraska, a high-revenue school which can afford to compete aggressively to pay the nation’s best athletes to come to Lincoln. That’s all well and good for Nebraska, Ohio State, Michigan, Alabama, Texas, Oklahoma and Georgia, but not good for college football as a whole, and it will be even worse for low-revenue-producing sports.

It will be a boost to the big boys. It will be a death knell for smaller schools whose athletic departments are already in financial trouble. It will make it a struggle for anyone outside the upper echelon in college football. When colleges stop sponsoring low-revenue sports, the contraction of opportunity will shut out the multitude of athletes who can’t make the cut at the elite universities.

Thankfully for Nebraska, the arrival of Matt Rhule as head football coach means the Huskers will earn their way into the upper echelon, which quite soon now will manifest itself as a separate NCAA division with its own system of governance. I prefer to call it the NFL Lite. For athletes at schools in the NFL Lite, whose football revenue will skyrocket and make it possible for dozens of low-revenue sports to thrive in its wake, life could be quite good. For most other college athletes, it will be a battle for survival.

Will traditional geographic-based conferences suddenly come back into vogue? Maybe the Pac-12 isn’t quite dead yet. It’s plausible that California and Stanford might re-think their shotgun marriage to the ACC, cut their travel costs and decide to keep scheduling baseball, softball, volleyball and other low-revenue sports with Washington State and Oregon State.

Certainly, annual February “play-cation” trips in California and Texas for many softball and baseball teams will be on the chopping block.

For athletes at most schools, the future appears grim if current trends continue. Take for example the University of Wyoming. Will the Cowboys be able to compete long-term with the NFL Lite schools? Certainly not. Widespread program cutting would appear to be in Wyoming’s future. And for hundreds, if not thousands of other schools.

What would it look like if Wyoming and its Mountain West colleagues adopted a club sports system for their low-revenue programs? Would Wyoming send its track and field team — er, club — to any out-of-state meets? It’s doubtful, unless some massive bake sales were held to fund the travel. Would it even send its wrestling club on a 100-mile trip across the state line for a dual at Greeley, Colorado, as it did earlier this year? Quite unlikely. In fact, full-on club status might be the fate of almost every low-revenue sport at almost every non-NFL Lite school in the nation.

A few questions:

This settlement only allows back payments to athletes who competed as early as 2016. What about the athletes who played in 2006? Why shouldn’t the 1995 Huskers, possibly the greatest college football team of all time, be awarded revenue? The arguments will be endless. Possibly the lawsuits as well.

Do college athletes really want to be employees? Will they be ready for the tax responsibilities that employee status will bring them? Are they ready for unionization and collective bargaining? If that happens, at least proactive steps could be taken to stop the tampering that’s already infesting the current Wild West model of major college sports.

Are there any competent, committed leaders out there? Leaders like Theodore Roosevelt, who not only rebuffed Rockefeller, but saved college football from its early unregulated excesses? Those people need to step forward now to spare college athletics from the unintended consequences of the untamed Wild West.

---

Stay up to date on all things Huskers by bookmarking All Huskers, following HuskerMax on X, and visiting HuskerMax.com daily.