“When you dream about playing in college,” Joseph Agnew told me not long ago, “you don’t ever think about being in a lawsuit.” Agnew, a student at Rice University in Houston, had been cut from the football team and had his scholarship revoked by Rice before his senior year, meaning that he faced at least $35,000 in tuition and other bills if he wanted to complete his degree in sociology. Bereft of his scholarship, he was flailing about for help when he discovered the National College Players Association, which claims 7,000 active members and seeks modest reforms such as safety guidelines and better death benefits for college athletes. Agnew was struck by the NCPA scholarship data on players from top Division I basketball teams, which showed that 22 percent were not renewed from 2008 to 2009—the same fate he had suffered.
In October 2010, Agnew filed a class-action antitrust suit over the cancellation of his scholarship and to remove the cap on the total number of scholarships that can be awarded by NCAA schools. In his suit, Agnew did not claim the right to free tuition. He merely asked the federal court to strike down an NCAA rule, dating to 1973, that prohibited colleges and universities from offering any athletic scholarship longer than a one-year commitment, to be renewed or not, unilaterally, by the school—which in practice means that coaches get to decide each year whose scholarships to renew or cancel. (After the coach who had recruited Agnew had moved on to Tulsa, the new Rice coach switched Agnew’s scholarship to a recruit of his own.) Agnew argued that without the one-year rule, he would have been free to bargain with all eight colleges that had recruited him, and each college could have decided how long to guarantee his scholarship.
Agnew’s suit rested on a claim of an NCAA antitrust violation combined with a laudable academic goal—making it possible for students to finish their educations. Around the same time, lawyers from President Obama’s Justice Department initiated a series of meetings with NCAA officials and universities in which they asked what possible educational rationale there was for allowing the NCAA—an organization that did not itself pay for scholarships—to impose a blanket restriction on the length of scholarships offered by colleges. Tidbits leaked into the press. In response, the NCAA contended that an athletic scholarship was a “merit award” that should be reviewed annually, presumably because the degree of “merit” could change. Justice Department lawyers reportedly suggested that a free market in scholarships would expand learning opportunities in accord with the stated rationale for the NCAA’s tax-exempt status—that it promotes education through athletics. The one-year rule effectively allows colleges to cut underperforming “student-athletes,” just as pro sports teams cut their players. “Plenty of them don’t stay in school,” said one of Agnew’s lawyers, Stuart Paynter.