The Blank Page

The Business of Football

By Mark Blank, Jr., Esquire

Ok, the football season has just ended. Some of you may already be suffering from football depression, which usually comes after the season finales. Well, let us reflect with a song:

“Every fall when leaves turn brown, Friday evening rolls around. I sit down in my TV chair, And my face assumes a TV stare. It’s football time. It’s highlight films of last Week’s games, commercials starring big league names. Analyses of every play, Picking the winners for Saturday. Interviews with the stars; Interviews with the waterboy; Interviews with the fullback’s grandmother. Now, on Saturday it’s do or die, for dear old Siwash We’ll defy, the enemy to dim our stars, who have their eyes on brand new cars. Thank God for scholarships; Thank God for alumni; Thank God for the school of education. Now, my poor wife has got it rough; cause Saturday wouldn’t be enough, but Sunday’s a tale She knows too well, a triple-header in the NFL. She says I don’t listen to her. She says she’s going to apply for a marital dissolution. Sounded to me like a new formation. Now, halftime shows star Pretty girls, with little short skirts and long blonde curls, but who’s got time For majorettes, when NBC Has got the Jets. And I just can’t afford two sets. But don’t fret Jets; with 400,000 for Namath and 200,000 for Hewart [who the hell is he?], you can spend them to death. The terminology is giving me fits It’s red-dogs, cornerbacks, Double safety blitz; Jitterbugging, automatic submarine zip, Zig-out, down-and-out, Nickelback hip. Just listen to the huddle. Hear the quarterback say: Tucker, just take that ball and run for your life. It’s your turn to be on instant replay. Well, as I sat there sipping beer, a shoe came whistling by my ear. A bullet passed; I mean, it went right through the TV screen. My wife was standing there laughing hysterically. And I said: “Don’t worry dear, I’ll get it fixed by next Friday”.” Chad Mitchell Trio, Talking Football

In NCAA football, the season finale is no less than 43 Bowl Games and the BCS Bowl. In the NFL, it is the Pro Bowl and, most of all, the Super Bowl. I can remember when there were four (maybe six) college bowl games: the Rose Bowl, the Cotton Bowl, the Sugar Bowl and the Orange Bowl. Maybe you could also throw in the Gator Bowl and the Liberty Bowl. (My parents always reflected on when there was but one Bowl, the Rose.) And the NFL Championship game was played generally on the first Sunday following New Year’s Day, not the middle of February.

Let’s face it. American football (between college and professional) is a trillion dollar industry. Professional football players and coaches have historically been well paid; of course, not like today. As for the NCAA football players, their compensation was glory and college expenses, and maybe a few other perks.

Now let us focus on the law. Is professional football a business? No, it is a big, big, big (maybe ten more bigs would suffice) business. Has it always been a business? Yes, but from the beginning, maybe just a business, not an enormous one. So let’s take a look at some legal history.

The first SCOTUS case involving professional sports was Federal Baseball Club vs. National League, 259 U.S. 200 (1922). There the Court held that baseball is a business but, nevertheless, was not engaged in interstate commerce, so as not to be subject to the Sherman Antitrust Act. Justice Oliver Wendell Holmes: “The business is giving exhibitions of baseball, which are truly state affairs . . . ” Id. 208.

The proposition stated in Federal Baseball Club was upheld in Toolson vs. New York Yankees, 346 U.S. 356 (1953) by a 7-2 margin that the antitrust exemption applies to baseball. (More about baseball, perhaps at the appropriate time.)

Now, let us talk football. In Radovich vs. National Football League, 352 U.S. 445 (1957), the Court ruled that professional football, as distinguished from baseball, not only is a business, but is, unlike baseball, subject to antitrust laws. Per Justice Clark; Justices Frankfurter, Harlan, and Brennan dissented.

Now, let us turn to NCAA football. Is it a business? Is it subject to antitrust laws; well, salaries of head coaches (not including smaller colleges, Ivy League, etc.) range from $800,000 to $11,000,000 per year. Call this a recreational sport, only a part of the college curriculum? I don’t think so. But it can be. A few years ago, I attended Columbia vs. Harvard at Harvard Stadium. It was fun. A money maker? Not bloody likely. Perhaps the annual Harvard-Yale game (America’s oldest football rivalry), which is always a sellout, may generate some revenue.

But let us go back a few decades. In NCAA vs. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), the SCOTUS held that an NCAA television plan was a violation of Section 1 of the Sherman Act.

The lawsuit in Board of Regents was commenced in 1981. But let’s go back even further. Detroit Football Company vs. Robinson, 186 F.Supp. 933 (E.D.La.1960) involved a “contract jumping” suit. There, Judge J. Skelly Wright began his opinion: “This case is but another round in the sordid fight for football players, a fight which begins before these athletes enter college and follows them through their professional careers [emphasis mine]. It is a fight characterized by deception, double dealing, campus jumping, secret alumni subsidization, semiprofessionalism and professionalism. It is a fight which has produced as a part of its harvest this current rash of contract jumping suits. It is a fight that so conditions the minds and hearts of the athletes that one day they can agree to play football for a stated amount for one group only to repudiate that agreement the following day or whenever a better offer comes along. So it was with. Johnny Robinson” Id. 934. (Johnny Robinson had played football at LSU).

Then in 1961 New York Football Giants, Inc. vs. Los Angeles Chargers Football Club, Inc. and Charles Flowers, 291 F.2d 471 (5th Cir. 1961) was a suit in equity for specific performance. (Flowers played football for Ole Miss.) Chief Judge Tuttle (one of the Fifth Circuit Four) began his opinion by quoting Judge Wright from Robinson. The District Court denied relief based on the clean hands doctrine. The Court of Appeals affirmed.

Now, the grand finale. In Alston vs. National Collegiate Athletic Association, 594 U.S.___ (2021), the Court upheld a District Court ruling that the NCAA cannot enforce certain rules limiting education related benefits (such as computers and graduate school scholarships) that colleges offer athletes. The decision of the Court was unanimous, with Justice Kavanaugh concurring.

The plaintiffs brought suit alleging that the NCAA and certain of its member colleges violated the policy of the Sherman Act by agreeing to restrict the compensation that colleges and universities may offer student athletes who play for teams. The focus was on education benefits.

However, as Justice Kavanaugh observed in his concurring opinion: “. . . This case is only a narrow subject

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of the NCAA’s compensation rules – namely, the rules restricting the education-related benefits that student athletes may receive, such as post-eligibility scholarships at graduate or vocational schools. The rest of the NCAA’s compensation rules are not at issue . . . and therefore remain on the books. These remaining compensation rules generally restrict student athletes from receiving compensation or benefits from their colleges for playing sports. And these rules have historically restricted student athletes from endorsement deals and the like.” (Kavanaugh, J., concurring, 594 U.S.___. Emphasis in the original)

That college football is subject to Sherman Antitrust Laws and has cases that land in the federal courts (including the Supreme), coupled with (1) the salaries of coaching and administrative staff; (2) the revenue generated to universities; (3) television; (4) the multiples of college bowls sponsored by large corporations; and (5) the NFL Draft, is more than sufficient to characterize NCAA football, as the NFL, as a business. Big business? Clearly, the NFL; but college, you be the judge and issue your ruling on the subject.

CHESTER COUNTY BAR ASSOCIATION Upcoming Events

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March

March 11th..................Presidents’ Dinner; Aronimink Golf Club, Newtown Square, PA

April

April 7th.......................Spring Bench Bar; The Desmond, Malvern, PA

May

May 12th .....................Key Gala; Penn Oaks Golf Club, West Chester, PA

2022 CCBA Presidents’ Dinner RESCHEDULED

FRIDAY, MARCH 11, 2022

Cocktails 6:30 p.m. | Dinner 7:30 p.m.

Aronimink Golf Club, 3600 St. David’s Road Newtown Square, PA

Honoring our 2020 & our 2021 Presidents, Samuel Cortes, Esq. (2020) and John Fiorillo, Esq. (2021) Black Tie Optional | Spouse or Guest Welcome