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Breaking Down the Reggie Bush-Heisman Situation

Star running back Reggie Bush gave back his Heisman Trophy. Although he did so voluntarily, quite obviously he would not have done so without the mounting public displeasure over the revelation that Bush received money from marketing representatives during his college football career.

Bush's action also was timed to preempt the imminent Heisman Trust reconsideration of his award. Bush has of course known of his NCAA rule violation for many years, and held on to the trophy since its award even though rumors and later more substantial evidence of Bush's payoff become public. Only with the whole scandal coming to a head did Bush "do the right thing." I'm not writing to call into question Bush's motivations in making this public act of contrition. I'm wondering if he has anything to be contrite about in the first place. The fact that Bush for so long delayed his act of contrition suggests to me he didn't.

I understand why the NCAA desires student-athletes to compete as amateurs. For that matter, I also understand why OPEC wants to drive up the price of gasoline. What perplexes me is why we help them.

1.There's really no two ways about it: the NCAA is a cartel. On behalf of its members, it procures the services of athletes at a fixed price. That price is the athletic "grant in aid," more commonly termed a scholarship. The price is substantial, and indeed for many student-athletes, the price might even be excessive. Some athletes contribute little to their team's success and profits. But for other athletes the price is substantially less than the athlete would command in a competitive market for his services. For which athletes is the fixed price too low? For those who are provided offers of compensation from other sources, such as boosters, agents, marketing representatives, or financial advisors. The offer of superior compensation identifies and measures the inferior fixed price of the scholarship.

2. The NCAA's reasons for imposing this cartel are valid and admirable. The NCAA wants athletes to focus on their studies, and not be distracted by monetary pursuits. The image of the part-time amateur athlete remains the ideal in contemporary college sports. Further, colleges and universities know that maintaining a competitive program in the revenue-producing sports (football and men's basketball) is hugely expensive. Prohibiting athletes from profiting allows the school to capture much of those profits for itself, by exploiting the athlete's likeness and image in merchandise sales and broadcast revenue. This money also funds other sports programs within the school, and goes a long way to maintain compliance with the equality dictates of Title 9. So the money's put to good use, for the most part. (Some might be troubled by the fact that part of the expenses needed to maintain a competitive program include paying the head coach's very large salaries. I don't begrudge the coaches their salaries, but I would posit that, if players were compensated by schools, that money would in part come out of the coach's salary. Because schools and their boosters can't pay players directly, they pay proxies (coaches) who are skilled at recruiting them.)

3. Other cartels also have benign motivations. During the oil criss, OPEC consistently maintained its goal in restricting the supply of oil was to ensure the continuance of a scarce natural resource. This is much the same language that governmental entities employ in imposing taxes on gasoline consumption or in limiting domestic production. Yet the fact that the oil-producing nations were profiting mightily from this concert of action obscured the benign message. To the contrary, the fact that governing authorities with respect to gasoline and NCAA member institutions with respect to athletes also profit mightily from exercising their market power is seldom mentioned. It is Reggie Bush who is the "cheater," people say, not the NCAA that cheats Bush out of the market price his services could command.

4. We cheered those oil-producing nations (e.g., Nigeria) that had the fortitude to defy OPEC during the hey-day of the oil crisis. The nations that defied OPEC (with Saudi Arabia as the center of OPEC) were heroes. Why didn't we call them cheaters? They had agreed to restrict output in order to drive up prices in order to conserve oil supplies, and then they did the opposite. Why did we cheer the OPEC cheaters yet now revile Reggie Bush?

5. I'm not saying that Bush, like all student-athletes, didn't know the rules. He knew he had agreed not to make money, yet he did it anyway. But our condemnation has to stop right there. Bush went back on his word, and that's it. He did nothing wrong in any additional or greater moral sense. Taking money for one's labor or services is not wrong. (In fact, why do we say college athletes "take" money, while the rest of us "make" or "earn" money? Bush earned it as much as any celebrity makes money off his fame.) Being paid for the use of one's name or public persona is not wrong. Bush took money from marketing representatives who planned, once Bush finished college, to find Bush advertising opportunities, a staple product of the modern celebrity athlete. It is not wrong to be paid for marketing one's name.

6. It is wrong to promise one thing and do another. But when the promise that is made (or for all practical purposes, required to be made lest the athlete end his football career on the spot) is one that cheats the promisor out of making a living, why should we, the public, be on the side of the promisee? Why should we use public pressure, including media scrutiny and even federal prosecution (yes, it's happened to agents) to help the NCAA maintain its private cartel? Why should we put those who try to break the cartel in prison (Norby Walters, an agent) or use public shaming and the threat of trophy revocation (Reggie Bush) to help out the cartel? Did we send Nigeria's cheap oil back?

7. To be clear, the NCAA has been for the most part successful in defending its restraint on trade in litigated cases. OPEC too, for different reasons, could not be broken through litigation. But I don't understand why we root for the cartel. The athletes who take money while in college are claiming what is theirs: the rights to their own property, namely the rights to one's labor and to one's publicity. Why should the NCAA be allowed to require the athletes to transfer those rights to the NCAA as a condition of his playing on the college football team, whether the player receives a grant-in-aid or not? Personally, I would have preferred to see Reggie Bush stand up to the public vilification and defend his right to earn a living.

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