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      Why America's Newest Tennis Sweetheart Should Sue The NCAA
      Photo via USOpen.org
      August 28, 2014

      Why America's Newest Tennis Sweetheart Should Sue The NCAA

      Here's what America's Newest Tennis Sweetheart should do: Take the money, stick it in a trust fund, and smile for the cameras.

      Then, hire a lawyer and sue the shit out of the NCAA.

      On Monday, 15-year-old Catherine Bellis defeated No. 12 seed and Australian Open finalist Dominika Cibulkova in the first round of the U.S. Open, becoming the youngest woman to win a match at the tournament in almost two decades. By winning her first Women's Tennis Association Tour-level match, Bellis also earned at least $60,000 in prize money—a one-day windfall she and her family plan to decline, the better to preserve her amateur status under National Collegiate Athletic Association eligibility rules should she later decide to play college tennis.

      In other words: A hardworking, ambitious, successful American teenager just forfeited the equivalent of a year's salary—at a pretty damn good job, no lessin order to maybe play collegiate sports for free at some point in the future. Bellis was forced to make this choice because a bunch of university administrators have collectively decided that college athletes should not be allowed to make money playing sports, even when said playing and money-making takes place before said athletes ever step foot on campus.

      This is a con; amateurism is a con. A tired con too. Less a skillful, elaborate ruse than a worn-down zombie slot machine outside a McCarran Airport departure gate. By now, everyone paying attention to big-time NCAA sports understands that amateurism acts to restrain trade, transforming otherwise ordinary (and encouraged) marketplace activities into salacious scandals and Pasta Plates Too Far; that it functions as what Nobel Prize-winning economist Gary Becker accurately describes as a racial reverse Robin Hood system in which money is stolen from "poor athletes and their families," many of them black, while transferring "these recourses to richer students" and even richer coaches; that it carries what Pulitzer Prize-winning Civil Rights historian Taylor Branch calls "the whiff of the plantation"; and that it exists as a classic (and classically illegal, by dint of the Sherman Act) cartel, at least according to a textbook written by economist Daniel Rubinfeld, who only testified on the association's behalf during the recent Ed O'Bannon federal antitrust trial. Yes, everyone knows that amateurism exploits the money-making young men on the field, the football players risking brain damage and men's basketball players wearing branded sneakers that match the logo on their coaches' shiny lapel pins.

      Less discussed, however, is how amateurism also punishes smaller-sport athletes. Including tennis players.

      Take Noah Rubin. Or Danielle Collins. Like Bellis, both are young American up-and-comers; unlike Bellis, both lost in the Open's first round. Nevertheless, each stood to pocket $35,754—and each turned the money down in order to remain eligible for college tennis. According to The Wall Street Journal, the 18-year-old Rubin plans to attend Wake Forest University for at least a year, while Collins, the 2014 NCAA singles champion, is returning to the University of Virginia.

      Like Rubin, Collins did the math, calculating that her scholarship was worth more than her prize money.

      "I had some contradicting thoughts because I would potentially earn $35,000 from just losing in the first round," she told the Journal. "But tuition at UVA costs about $50,000 per year so that wouldn't cover tuition at UVA, and I want to have my degree."

      Here's the thing: Collins shouldn't have to choose. Nor should Bellis or Rubin. Athletic scholarships and tournament purses aren't fundamentally incompatible. They're actually the same thing: awards for excellence. Moreover, there's nothing inherently wrong with current and potential college students earning money through part-time jobs, be it jobs that involve moving furniture, frothing milk, or hammering forehands down the line. Amateurism's tinpot morality—originally conjured so that snooty, Victorian Era English aristocrats wouldn't have to row against unwashed laborers—creates a reality distortion field, particularly when athletic directors open their mouths in public. But it doesn't change actual reality. Always remember: Thou shalt not make a buck, unless it's to build a car elevator at your coach's beach home didn't come from Mount Sinai, the Founding Fathers, or the inside of a fortune cookie. It came from the NCAA rulebook, a 400-plus page anachronism standing in the way of equal pay for an equal day of on-court work.

      Fortunately for athletes, the association's rules are ripe for legal challenge.

      First, the hypocrisy. Did you know that NCAA bylaws allow tennis players—and only tennis players—to pocket up to $10,000 a year in prize money before playing in college, but not a dollar more? Did you know that current college players can't receive any prize money at all, but can be paid for the expense of competing in events like the Open? Did you know that current and prospective college athletes are allowed to receive cash rewards from the U.S. Olympic Committee and national sport governing bodies for winning medals as part of a specific "Operation Gold" program, but aren't permitted to accept money from those same organizations outside of the Olympics? Did you know that former University of Notre Dame football player Tom Zbikowski was allowed to keep prize money from a boxing tournament held at Madison Square Garden, while former University of Colorado football player Jeremy Bloom was declared permanently ineligible after suing the NCAA over rules that prevented him from earning endorsement money as an Olympic-level freestyle moguls skier? Did you know that, until 1956, the association frowned upon athletic scholarships as pay-for-play, and that until 1975 it permitted small cash payments to athletes for cost-of-living expenses?

      If all of the above strikes you as batshit insane, you're not alone. Ruling against the NCAA in the O'Bannon case, federal judge Claudia Wilken noted that amateurism wasn't so much what the association dubs a "bedrock principle" as a shifting sand castle, a nebulous concept that ultimately doesn't justify preventing Division-I football and men's basketball players from profiting off commercial uses of their names, images and likenesses (NILs).

      Photo via USOpen.org

      Enter a potential Bellis case. On one hand, the O'Bannon decision doesn't apply to her—the case didn't cover tennis players nor did it mention prize money. If Bellis wants to enjoy the full fruits of her labor, she'll have to sue. On the other hand, Wilken's ruling provides a rough road map to legal victory.

      How so? Follow along. Antitrust laws are designed to promote marketplace competition. Competitors colluding to avoid doing business with targeted individuals—in this case, rival schools agreeing to boycott athletes who receive more than a certain amount of tennis prize money for winning matches in outside tournaments—is generally illegal. However, exceptions sometimes are made for agreements that are procompetitive—that is, necessary for a product or industry to exist or thrive in the first place.

      During the O'Bannon trial, the NCAA offered a series of procompetitive justifications for restraining football and men's basketball player NIL payments. Wilken rejected all of them, either fully or partially. Facing a tennis player lawsuit, the association would likely make similar arguments—arguments opposing lawyers could now counter. Consider:

      Competitive balance: The NCAA insists that if athletes are allowed to be paid, the richest schools will outspend their rivals for the best high school recruits and dominate subsequent competition. In her O'Bannon decision, Wilken pointed out that this already occurs—for instance, the University of Kentucky does not lose basketball prospects to Ball State University—and that financial competition still occurs via lavish payments to coaches, administrators, and facilities, all of which act as indirect recruiting inducements.

      Shift to tennis prize money. It's hard to imagine how it would influence recruiting in the first place. After all, the cash is coming from tournaments—not schools—and is awarded for winning matches, not for signing national letters of intent. To put things another way: Would a high school basketball star who sinks a big-money half court shot during a National Basketball Association promotion suddenly be more likely to attend Duke University?

      Moreover, a tennis player with $60,000 extra dollars in her pocket is arguably better equipped to select a school without being influenced by school athletic spending. After all, if you can afford to eat steak every night, you may not be as impressed by some fancy athletes-only dining hall.

      Product survival: In O'Bannon pre-trial court filings, a series of campus executives claimed that the added expense of paying players would force schools to drop scholarship sports altogether. Perhaps with University of Alabama football coach Nick Saban's $7 million salary in mind, Wilken wrote that the NCAA's position was "not credible." The great thing about outside prize money? It doesn't cost schools a penny. To the contrary, a college tennis player with $60,000 of cold, hard Open cash in her pocket is more likely to spend a few extra bucks at the school bookstore, or maybe at a campus bar. Dear universities: Why are you trying to hurt local businesses?

      Fan preference: The association maintains that fans love college sports not as a result of school affiliation, nor out of fondness for a particular sport—duh—but rather because the athletes competing aren't compensated. No, really. That's the argument. Go State! Go poverty! Pay the players, and the public will turn off its televisions. Wilken dismissed this notion—in part because the NCAA's primary supporting evidence was a poorly-constructed public opinion survey; in part because no organization in the history of sports has ever attempted to boost ratings by banning payment; in part because both the Olympics and the Grand Slam tennis tournaments dumped amateurism decades ago, and both are more lucrative and popular than ever.

      As for a potential Bellis case? Read that last part again. Alternately, consider the following quote:

      "Roger Federer has a beautiful backhand, but I won't watch until Nike stops paying him filthy lucre to hit it."

      David Foster WallaceA sentence uttered by no tennis fan ever.

      Education: The NCAA says that if athletes are paid, they'll be financially motivated to play more and study less. In a humorous bit of verbal jiu jitsu—well, humorous by the standards of 99-page federal antitrust rulings—Wilken flipped the association's argument on its head, noting that if schools truly were concerned about incentivizing learning, they would condition athletic NIL payments on getting good grades. Of course, none of the preceding even applies to tennis prize money, as the cash in question is awarded: (a) during summers, when school isn't in session; (b) before players start college.

      Speaking of making money before entering school, for decades, the NCAA didn't allow it, only adopting the $10,000 limit two years ago. What prompted the change? In the mid-2000s, a number of schools were stocking their tennis teams with foreign students, players who had tried—and failed—to make it as professional players. Many had received prize checks, and most ended up spending more than they earned on travel and training. Few had any clue what amateurism even was; as a German tennis official told the New York Times in 2006, "Nobody [overseas] plays for free."

      Among the transplants was Benedikt Dorsch, a German who won the 2005 NCAA singles title while playing for Baylor University.

      "You ask someone at 16 what you're going to do in five years, and you say, 'I want to be a professional tennis player,'" Dorsch told the Times. "I didn't know what the NCAA was. Sure, I won some money. But over all, I lost more money chasing my goal. It's not like I was Boris Becker or was on the ATP Tour or anything."

      One year after Dorsch's championship, Baylor's men's and women's tennis teams featured a total of 14 international players. The school's coach, Matt Knoll, made no apologies. "The world is getting smaller, and we've historically had a difficult time attracting the top American players to Waco, Tex., and this small private university," he told the Times. "We want to be competitive, and our team goal is to win championships, so we've gone to where we can get players." Rival coaches griped, complaining about ringers. In 2007, however, NCAA tennis officials proposed the $10,000 allowance, which finally passed five years later. Expediency trumped phony principle. It always does. Amateurism remains whatever the association says it is, until federal judges say otherwise.

      Earlier this year, a familiar face testified before Congress. The subject was the potential unionization of Northwestern University football players. College sports officials predicted doom and made the same arguments featured in the O'Bannon trial. "If antitrust principles and collective bargaining eliminate pro-competitive limitations on payments and benefits," one said, "there may literally be no 'competitive' intercollegiate sports." He did not mention the $10,000 exception for tennis players, or why football and men's basketball players weren't granted the same exception, or why Bellis or anyone else should be subject to a $10,000 cap at all.

      The speaker in question? Ken Starr. The same Ken Starr whose investigation into Bill Clinton's affair with Monica Lewinsky opened the door to presidential impeachment hearings. That was then. Today, Starr's a rock-ribbed member of the NCAA establishment. A university president. At Baylor. It all makes sense, but not for the athletes.

      Catherine, please sue these idiots. You'll win.

      Patrick Hruby is a Washington, D.C.-based writer and former Georgetown University professor. His work has appeared on Sports on Earth, The Atlantic online and ESPN.com and in Washingtonian magazine, ESPN The Magazine, the Washington Times and The Best American Sports Writing. Contact him at his website and follow him on Twitter.

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