Myles Brand and the Illusion of Reform

Myles BrandAlthough NCAA president Myles Brand has just passed away, it is not too early to comment on his legacy in the world of big-time college sports.  When he was appointed to his position in 2002, those who believed that the NCAA was in need of serious reform were delighted.  Brand was then president of the Indiana University and had previously been president of the University of Oregon and provost at Ohio State.

Not only was Brand the first college president to appointed to head the NCAA, he also possessed impeccable academic credentials.  He held a Ph.D. in Philosophy from the University of Rochester, and had previously been a faculty member at the Universities of Pittsburgh, Illinois-Chicago, and Arizona.  Although he was a fan of sports, he had never been an athlete or a coach of any consequence.  (He played freshman basketball and lacrosse at small college RPI but apparently wasn’t good enough for the varsity.)  Moreover, he had proved his ability to stand up to the goliath that is college sports when as president of Indiana University he fired highly successful basketball coach Bobby Knight for repeatedly boorish behavior.

Unfortunately, Brand turned out to be a disappointment for those who hoped that he might usher in an era of real reform in college athletics.

He leaves the NCAA pretty much as he found it, an economic powerhouse characterized by sharp distinctions between rich and poor, with the rich reaping the benefits of ever-increasing television revenue and exploiting the skills of young athletes, only a few of whom are able to continue their careers at the professional level.  When he assumed office the schools with the strongest commitments to men’s football and basketball were engaged in a seemingly endless “arms race” characterized by larger and larger stadiums and arenas, and by high profile coaches paid more and more money each year.  At the time of his death, the arms race continued unabated.

Media outlets have responded to Brand’s death by emphasizing his commitment to reform.  According to the Indianapolis Star, “Brand elevated academics [and] put athletics in perspective.”   Sports Business Daily reported he left a “legacy focused on academic reform in the NCAA,” while the Associated Press praised the fact that he “worked to change the perception that wins supersede academics and earned accolades for his efforts.”  Kind words, but words that should acknowledge that if these were his goals he largely failed in such efforts.

When one asks what Brand actually accomplished as director of the NCAA, it is difficult to point to any truly significant reform.  While it is true that he continued the process of tightening academic standards for athletes and placing greater emphasis on graduation for athletes, it would be disingenuous to claim that during his years at the helm student athletes were held to the same academic standards as ordinary students, for it is clear that they were not.

While there is no consensus among academic reformers as to what NCAA rule changes are necessary, a reform-minded director might have pushed for:

  • Salary caps for coaches.
  • Requirements that coaches be members of the faculty.
  • A return to earlier limitations on the number of regular season games in football and basketball.
  • Greater revenue-sharing of broadcast income among all NCAA members regardless of the division in which they participated.
  • The repeal of the advantages given to members of the so-called BCS conferences in regard to the determination of the national college football champion.
  • Abolition of the distinction between Division I, FBS teams and Division 1, FCS in college football.
  • Reductions in the number of athletic grants-in-aid available to NCAA members.
  • A new classification system that grouped schools on the basis of their enrollments rather than the size of their athletic budgets.
  • Congressional approval of an antitrust exemption for college athletics that would remove doubts regarding the legality of “anti-commercial” regulations.

It is of course true that the president of the NCAA could not unilaterally implement such changes, but there is no evidence that Brand ever committed himself to such innovations.  In spite of all of his talk about academic integrity and amateurism, he was basically a supporter of the existing system.   While Brand denounced “commercialism gone wild” in one of his final speeches, he was always careful to point out that he was not an opponent of commercialism in college sports.  In fact, he regularly encouraged NCAA schools to seek out new forms of revenue.  As he frequently put it, college sports could not survive without commercial activity.

In his final remarks at the 2009 NCAA convention (read in his absence by aid Wallace Renfro), Brand warned against the “extremes of unrealistic idealism” as well as the dangers of excessive commercialism.

Myles Brand was a capable president of the NCAA, and he may well have been an improvement over his predecessors, but he was never the visionary reformer that some of his fans made him out to be.   We are still waiting for the first “idealistic” president of the NCAA.

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Learning About Law . . . by Watching Football?

instant replayWho knew you could learn so much about jurisprudence from the NFL rulebook?  In a new paper on SSRN, Chad Oldfather (Vikings fan) and 3L Matthew Fernholz (Bears fan) demonstrate that it is surprisingly illuminating to compare and contrast the rules of instant replay with the rules of appellate review.  Their title says it all: “Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review.”  Here is the abstract:

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.

This is a fun and — only six days until the Packers’ season opener! — timely article.

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Is Michael Vick a Civil Rights Martyr?

VICKpbMichael Vick’s return to the NFL last Thursday demonstrated, if nothing else, that Americans are tired of debating dog-fighting and the appropriateness of Vick’s 23 month sentence for violating federal dog-fighting laws.  Only a couple of anti-Vick demonstrators showed up at the game.  In fact, by far the largest number of demonstrators at the game were civil rights activists, many members of the Philadelphia chapter of the NAACP and the Black Clergy of Philadelphia.  The pro-Vick demonstrators were there to protest the harsh treatment that Vick received, and, in their view, continues to receive, from animal rights groups and the American legal system.

The national debate triggered by Vick’s arrest and conviction revealed that most middle and upper class Americans viewed dog-fighting as barbaric and properly criminal.  On the other hand, it also made many aware for the first time that there were racial, socio-economic, and regional dimensions to the debate.  While few openly called for the repeal of all dog-fighting laws, it became clear that many African-Americans and rural whites, particularly Southerners and those with lower incomes, did not view dog fighting as a particularly serious offense.  Many in these groups still find it a fascinating and exhilarating spectator sport, and, consequently, view the laws against it as trivial and unfair.  From their perspective the issue was not so much one of animal rights but the ability of the majority to impose their cultural views on a relatively powerless minority.

Although dog-fighting has been illegal in every state for some time now—Vick’s home state of Virginia outlawed “commercialized” dog-fighting and betting on dog-fights at the end of the 19th century—the sport once had a long and surprisingly upper class pedigree.  Queen Elizabeth I was a great fan of dog-fighting and prevented Parliament from outlawing the sport during her reign.  Dog-fighting, along with bear baiting, cock fighting, gander pulling, and other blood sports were quite popular in colonial Virginia and helped to unite individuals of different races and economic classes, including slaves and their masters.

Even after dog-fighting was outlawed, at least in the South there was a long tradition of law enforcement officials looking the other way, or sometimes joining in the activity.  (In that regard, it was like “moonshining.”) To this day, the kindred sport of cock fighting remains legal in Virginia (so long as it is done solely for the enjoyment of the spectators and no money changes hands), and a recent effort to abolish it in the Old Dominion failed, in part because the state’s farmers are among the nation’s leading breeders of fighting roosters.  More over, hunting, fishing, and horse racing continue to be perfectly legal although it is hard to believe that the animals involved derive much pleasure from the sport.

I spent a good part of the summer in my hometown of Pearisburg, Virginia (pop. 2200).  While I was there, the topic of conversation frequently turned to Michael Vick.  Although the town has a black town councilman which it elected in at large voting, it is predominantly white and very conservative.  Almost without exception, however, everyone seemed to view seemed to feel that Vick had gotten an extremely raw deal.

While it is true that the town is overwhelming populated by fans of Virginia Tech (Vick’s alma mater), I don’t think that that was the reason for their views.  (They would have felt the same, I think, even if he had played for UVa or West Virginia University.) For what they viewed as at best a minor infraction against an animal, Vick was punished as though he had committed a serious offense against another human being.

I am sure that nothing would please Michael Vick more than for the public to completely forget about his dog-fighting experiences.  However, as the focus of civil rights disputes increasingly shifts from issues of race to issues of culture, Vick may be a symbol of resistance for those who embrace rural, lower class Southern values instead of those of the middle-class majority.

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