International student athletes in the NCAA: professionals or exploited children?

• Author: Stewart, Patrick L.

1. INTRODUCTION II. FOREIGN STUDENTS IN AMERICAN HIGHER EDUCATION A. History of Foreign Students in American Colleges and Universities B. Current Economics and Distribution of Foreign Students C. Interests of the American People in Retaining Foreign Students D. Burdens that Foreign Student Athletes Face in America III. DRASTICALLY DIFFERENT DEVELOPMENTAL SPORTS MODELS A. The European Union Model B. The American Model IV. National Collegiate Athletics Association RULES AND STANDARDS A. Eligibility Requirements V. SIGNIFICANT ISSUES WITH NCAA AMATEUR ATHLETICS A. Loopholes B. Anti-Trust Issues VI. PRACTICAL AND IMPRACTICAL SOLUTIONS A. Plausible Solution for International Student Athletes B. Implausible Total Change VII. EPILOGUE I. INTRODUCTION

   Why can't eighteen-year-old Turkish basketball player Enes Kanter go to the University of Kentucky? An investigation by the National Collegiate Athletics Association (NCAA) determined that Kanter received benefits beyond those required for actual competition from his club team in Turkey. "Enes took advantage of an opportunity to play at the highest level available to him, but the consequences of receiving payments above his actual expenses is not compatible with the collegiate model of sports that our members have developed," said Kevin Lennon, NCAA vice president of academic and membership affairs. (1)

   Kanter is a recent example of the result of intermingling two systems of developmental athletics. (2) He was attempting to make the transition from the governmental and club model for developmental sports in Turkey (3) to the scholastic model in America, where athletic teams are tied to education. The underlying principles of amateurism promoted by the NCAA are directly at odds with the culture both ideologically and governmentally of that which Kanter was accustomed to. (4) The developmental athletics institutions in Turkey are built on a club and governmental model rather than a scholastic model. (5)

   The result of the NCAA investigation into his amateur status determined that he received approximately thirty-three thousand dollars above his actual expenses not directly required for competition. (6) Included in these expenses were housing and travel provided to his family members. (7)

   If Kanter's situation had been slightly different and he was born into the scholastic model for developmental athletics in the United States, his eligibility would not be in question. If Kanter had been born in America, he could have attended a private school on a scholarship that would have provided him with full-time room and board, and the NCAA would consider these expenses to be directly related to competition. (8) American-born amateur athletes and their parents have always found ways to fit in with the NCAA system and its rules that limit them from taking advantage of the opportunities presented by a packed stadium. If Enes had been born in the United States, his parents could have taken a high interest loan leveraged against their son's potential future income and current marketability as a blue chip recruit. (9)

   For American-born students, the NCAA provides some exceptional multisport athletes with another alternative where they get paid and are still able to attend a NCAA university by getting paid in another sport. (10) If Kanter had played professional soccer, the most popular sport in Turkey, he could still be eligible to play basketball at Kentucky. (11) By way of example, college football is currently rich in former minor league baseball players following in the footsteps of former Heisman trophy winner Chris Weinke from Florida State University. (12) Chris Weinke played in the Toronto Blue Jays farm system. (13) After six years playing professional baseball, Weinke switched gears and went to play football at Florida State University. (14) After leading the Seminoles to the National Championship, Weinke became the oldest Heisman Trophy winner in history. (15)

   Why does it matter to the NCAA if Enes Kanter received compensation while playing in his native Turkey for a system that customarily paid certain expenses for its star athletes and their families? Why, considering the fact that he made the move while still younger than eighteen to come to the United States to hone his skills in his chosen craft, would he make the mistake of accepting illegal contributions from his club team? He was already a fan favorite at Kentucky before ever playing in a game. (16) Less than five hundred jerseys, sold at the seventy five dollar price that the official university website sells other Wildcat basketball players' jerseys, would recoup the living and travel expenses paid illegally to the Kanter family, while they continue to live at home in Turkey. (17) With his athletic status, Kanter stood little chance of coming out of the Turkish system eligible to play basketball at an NCAA institution, thus preventing him from receiving an education at the University of Kentucky. (18) Kanter still hopes to attend and play basketball for the University of Kentucky, (19) even though he could go back to Europe and reap the benefits that come with his considerable talents.

   This paper proposes that Enes Kanter and those like him are receiving unfair treatment from the NCAA. First, this paper will examine the importance of foreign students and the pivotal role that they play in the American higher education system. Second, it will look at the different systems of amateur athletics from which this situation arose. In a system that sponsors equality (20) and diversity (21) as virtues for the student athletes, the NCAA lives up to neither criterion in the treatment of international prospects. The subtopic of the paper will be the underlying sham that is amateurism in big time college sports.

2. FOREIGN STUDENTS IN AMERICAN HIGHER EDUCATION

   The American economy is at a trade deficit in almost all areas of commerce. (22) It relies heavily on the rest of the world to provide automobiles, electronics, clothing and most other products that Americans use on a day-to-day basis. (23) The U.S.'s alarming and growing trade deficit puts an enormous strain on the American economy and threatens its place at the top of the world's super powers. (24) However, the U.S. does have one commodity that almost every wealthy nation in the world wants to get their hands on: as of 2009, the American education system boasted fifty-four of the world's top two hundred universities. (25)

   Many world leaders have gained experience at American Universities; (26) foreign government officials throughout the world have sought the benefits of the American higher education system. (27) In 2009, international students-contributed nearly twenty billion dollars to the U.S. economy. (28) International students boost the local economy by paying for books, room and board, other living expenses, health care, transportation, and for family members who have traveled with the student. (29)

   That economic boost does not take in to account the cultural additions and benefits that come with diversity. (30) The Supreme Court affirmed in Grutter v. Bollinger that diversity is a compelling state interest. (31) Both professors and students recognize the benefit they receive from different points of view and from different cultural upbringings represented in their classes. (32)

   International students are generally considered to enrich cultural diversity of the educational experience as well as enhance the reputation of United States universities as world-class scholastic institutions. (33) For these reasons, the United States has since fostered and encouraged the international student system.

   1. History of Foreign Students in American Colleges and Universities

      Since the Immigration Act of 1924, (34) the United States has allowed foreign students to study in American universities. (35) The purpose of the original act was to limit the quota on many nations' immigrants to two percent. (36) The restrictions were intended to limit the number of foreign nationals that were allowed to immigrate to the United States. (37) The legislation also created the category of international student for American colleges and Universities. (38) Students and faculty members were not counted against the quotas for immigration, (39) which is a telling sign that the legislators at the time believed that educated immigrants brought more to the table than the rest of their countries' populations. (40)

      The Immigration and Nationality Act of 1952 established a change in the American view of immigration. (41) The hard quotas based on country of origin were no longer the standard. (42) The new immigration policy was based on a person-by-person basis where it was the responsibility of the Attorney General to determine whether an applicant for immigration would be a benefit rather than a detriment. (43) Placing an emphasis on screening immigrants and nonimmigrants for admission to the country is an indicator that the creators of the statute had specific goals in mind. It is possible that they could have believed that bringing in the best and brightest minds from all over the world would be a significant benefit to America.

      Stemming from the Mutual Educational and Cultural Exchange Act of 1961, the development of "F-1" visas and the creation of "J-1" visas for students who were to be considered nonimmigrants was meant to streamline the international student process. (44) The criteria to be a nonimmigrant was that the Attorney General had to be convinced that the applicant had a satisfactory home in his country of origin and had the intent to return after completing his studies. (45) The applicant also had to be eligible to enroll in the approved educational track that he was visiting America to pursue. (46)

      The immigration policies were adapted in 1961 to allow the family members of certain approved nonimmigrants to travel to the United States with the same status. (47) These changes...