How the College Football Legend & Former Supreme Court Justice’s Legacy Might Line Up with College Athletics & NIL in 2021
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Channeling Byron “Whizzer” White: How the College Football Legend & Former Supreme Court Justice’s Legacy Might Line Up with College Athletics & NIL in 2021
Executive Summary
Byron White was a college football All-American and Heisman Trophy runner-up, a naval officer, and a Supreme Court Justice
White earned nickname “Whizzer” from a Denver-based reporter due to his array of talents on the football field while competing for the University of Colorado in 1930s
White was appointed to the United States Supreme Court in 1962 by President John F. Kennedy
White’s 31-year tenure was one of the longest in the court's history; among twentieth-century justices, only Hugo L. Black, William O. Douglas and William J. Brennan Jr. served longer
Themes from Justice White’s opinions in key Supreme Court cases may illuminate what his perspectives might be on Alston, NIL, and twenty-first-century college sports
White’s historic football playing days at Colorado were ironically immortalized in a 1955 Topps football trading card, reflecting the dynamics of college athletics and NIL decades ago
Our tap, click, and swipe lives that find oxygen from social media platforms have been helping elevate the “brands” of people from all walks of life.
In today’s instant and niche celebrity world, having a catchy and nationally recognized nickname would be a very attractive asset to anyone, including college athletes who are the cusp of monetizing their NIL.
And within the changing landscape of college athletics, the United States Supreme Court is weighing fundamental questions and core policy issues presented in the Alston case, which is focused on if and how college athletics remains distinct from pro sports, particularly as college sports become increasingly commercialized and college athletes’ visibility reaches unprecedented heights. In short, there’s a lot going on in college sports these days!
Against that backdrop, historians, educators, college sports fans, and legal practitioners (including the Justices themselves) might love a turn in the ‘Way Back Machine’ from Rocky & Bullwinkle to spend some time with one Byron “Whizzer” White or, more realistically, at least learn from his life and story in managing today’s college athletics and NIL destiny.
Where the Colorado Buffaloes Roam
Per his obituary in the New York Times, Byron White was raised in a small Colorado town by parents who never graduated from high school. A gifted scholar-athlete who outshone competition on the field and in the classroom, White’s education was supported by scholarships. He was the only person to become both a member of the College Football Hall of Fame, to which he was elected in 1954, and a law clerk to the Chief Justice of the United States.
In the full glare of national publicity, he juggled his two worlds to a degree that would be inconceivable today. In 1938, having deferred his Rhodes Scholarship for a semester to play a season of professional football with the Pittsburgh Pirates (later called the Steelers), he received the National Football League's highest-ever salary, $15,800, and led the league in rushing, a feat he duplicated two years later, when he took a semester off from Yale Law School to play for the Detroit Lions.
White’s stellar law school career, which was interrupted by football as well as by Navy service during World War II, was capped by a year as a law clerk to Chief Justice Fred M. Vinson during the court's 1946-1947 term. Just 15 years later, Byron White became the first Supreme Court law clerk to return as a justice.
From Gridiron Glory to Judicial Legacy
White’s own judicial legacy remained a complex and somewhat ambiguous one, as the New York Times reported. He did not achieve the stardom or public recognition as a member of the Supreme Court that he had received as a college athlete earlier --not that he sought either at any point in his life. An authentic -- if reluctant -- celebrity in an era before fame became an everyday commodity, he viewed with intense distaste, for the rest of his life, the media speculation that attended his every move as a young man.
Ironically, in today’s environment of social media and self-branding, White’s dislike of the nickname Whizzer, which the sportswriters had bestowed on him and which he could never quite manage to shake, would likely be a prominent hashtag on Twitter and Instagram.
''Byron would have been just as happy -- I think he might have preferred -- if he played with 21 other players in an empty stadium,'' one of his University of Colorado teammates commented many years later to Justice White's biographer, Professor Dennis J. Hutchinson of the University of Chicago Law School.
In addition to being a White biographer, Hutchinson penned a biographical novella about White in the Yale Law School Journal entitled “The Man Who Once Was Whizzer White.” The following is an excerpt from that article:
“The nickname White would play down years later came from his football exploits while attending the University of Colorado. Leonard Cahn, a sportswriter for the Denver Post, remarked to a colleague that young White was "a real whizzer" that afternoon in the traditional Colorado-Denver University freshman game. Cahn, taken with his inspiration, promptly printed the observation the next day. The name, to say the least, stuck. Thus, at the age of 17 Byron White had an identification he did not seek, did not like and could not shake.
Since that autumn day in 1934, except in the most formal publications, Byron White has always been three names, with one being offset by parentheses or quotation marks depending on editorial taste. The name lent itself to reductionist explanations of almost anything, from White’s manner to his values. For later critics of his judicial views, the name allowed condescension and even ridicule to be packaged in a single snappy phrase.
With the nickname came expectations, but White's sophomore year ended after the first game when he blew out his knee. Already, however, the name was taking its toll. His replacement at tailback, W.C. "Kayo" Lam told a teammate that he was "lucky to beat out the great Whizzer White." The remark may have been good-natured, but the name and the attention it attracted began to constitute a friction spot for White and his teammates.
White's junior year was the first step on his road to national prominence: he played well enough to receive all-conference honors, and his stature as a three-sport star (basketball and baseball, too), combined with a straight-A average, made him the most famous man on campus and the logical choice for the faculty committee who annually selected the President of the Student Body.
When his senior year began, White was already being mentioned as a potential All-American. Grantland Rice, the Phi Beta Kappa-turned-sports columnist, mentioned on his radio show that "'Whizzer' White is the ideal moniker for a triple threat tailback," and he believed "the man with that name was going to live up to it," ordaining national stature never before enjoyed by any player in the Rocky Mountain region. White's performance during the 1937 season was "arguably the greatest season statistically of any back in 50 years of NCAA rankings,"' according to the NCAA.
White led the country in almost everything, but it took drama to be famous, and he rose to the occasion against Utah in Salt Lake City. Less than 48 hours before gametime, he was notified of his election to Phi Beta Kappa. He then proceeded to score all the team's 17 points and provided the margin of victory, but, more importantly to his legend, he reeled off a 97-yard punt return that included a retreat of more than 15 yards into his own territory, a zig-zag across the field, and then a series of near-miss tackles that some old-timers talk about even today.”
Drawing from a selection of his Supreme Court opinions, how Justice White might look at NIL, the Alston case, and the underlying themes of civil rights, social justice, economics, amateurism, and competitive balance in today’s college sports.
As his New York Times obituary captured, White joined the court in 1962 at the height of its liberal activism under Chief Justice Warren. Justice White was often in dissent during his early years as a justice and assumed a position of influence only after a series of appointments by Republican presidents shifted the court in a more conservative direction.
''Eventually, the court changed, society changed, the issues changed,'' Kate Stith Cabranes, a Yale Law School professor and one of his former law clerks, said after his retirement. ''Byron White didn't change.''
He cast dissenting votes in Miranda v. Arizona, the 1966 landmark decision that required a police officer to inform a suspect of his right to remain silent and to consult with a lawyer, and in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Although he gradually came to accept the Miranda doctrine, Justice White never reconciled himself to Roe v. Wade and continued to dissent as the court applied and affirmed that decision over the years.
One of Justice White’s hallmark positions was his commitment to “the use of federal power to eradicate the legacy of school segregation. He wrote majority opinions upholding wide-ranging desegregation orders for Northern school districts and affirming the power of federal judges to order a school district to increase taxes to pay for the school improvements necessary to make an integration plan work,” according to the New York Times. That judicial advocacy for school integration would seemingly align, in a baseline way, with the advocacy for the rights of student-athletes to use their NIL for commercial gain by promoting goods and services -- both related to access and opportunity.
One consistent point raised today about NIL, student-athlete rights and the economics of college sports is that the highest revenue-generating sports of men’s basketball and football are predominantly played by African-Americans yet student-athletes in those sports do not have (yet) the ability to monetize their NIL. From Dr. Shaun Harper’s 2018 edition of his report entitled “Black Male Student-Athletes and Racial Inequities in NCAA Division I College Sports”, Black men were 2.4% of undergraduate students enrolled at the 65 Power-5 universities, but comprised 55% of football teams and 56% of men’s basketball teams on those campuses.
The Center for American Progress asserted in 2019 that “black male college athletes are getting a bad deal. They are underrepresented in the Power Five colleges and in the majority of college sports programs. Their work on the court and the field generates vast profits for the NCAA, member colleges, and TV networks, yet student-athletes receive no share of the profits they generate.”
White had joined the Court eight years after the decision in Brown v. Board of Education, mandating an end to racial segregation in public schools. White joined in almost all expansions of that decision, including providing support for affirmative action in college admissions, in the case of Regents of the University of California v. Bakke in 1978.
White’s vote, however, was not always available to support civil rights claims. He dissented in a 1976 case, Runyon v. McCrary, declaring that federal law bars race discrimination in admissions to private schools. He contended that the law involved only applied to officially required segregation.
As social justice issues have captured the hearts, minds, and attention of Americans this past year, White’s involvement with the civil rights movement is noteworthy in the context of NIL being its own rights issue. With the civil rights struggle accelerating in the South in the early 1960s, White monitored federal efforts to quell the growing violence that accompanied the freedom rides, sit-ins and marches. He went to Alabama to monitor 400 federal marshals and deputies sent to restore order in the state in May 1961.
Another takeaway from a Supreme Court opinion authored by Justice White could be aligned with the premise that NIL activities will involve shared responsibility and accountability that rests with both NCAA schools and student-athletes. Historians noted White believed that with power came accountability, filing a strong dissent from a 1982 decision that gave presidents absolute immunity from suits for damages for their official actions. If NIL commercial opportunities equate to power, then student-athletes may be gaining both power but also a heightened responsibility and accountability over their affairs including the legal, business, and tax implications of their NIL transactions.
White also dissented from the court's 1983 decision in the Chadha case, which invalidated the legislative veto, a device widely used by Congress to block executive branch actions. ''The history of separation-of-powers doctrine is also a history of accommodation and practicality,'' he wrote, objecting to the majority's insistence on maintaining the barrier between legislative and executive power.
Checks and balances within our three-pronged governance structure in the United States may be analogous to the three-party dynamics that we anticipate will exist with future college athlete NIL transactions -- the three parties being a student-athlete, their NCAA school, and the third-party corporate sponsor, each of whom have vested interest in the management and outcome of those NIL transactions.
How would Justice White reflect on his own student-athlete experience as “Whizzer” White in addressing the issues in Alston before the Court and, more broadly, NIL?
Mega-television and media rights deals (let alone television sets) were non-existent in the days Whizzer White was running for glory on the football field in Boulder, Colorado. How Justice White might reflect on his days as Whizzer White in the context of NIL is a speculative exercise.
Though, if we draw from his own student-athlete experience which included being named a Rhodes Scholar, White may have had particular interest in how twenty-first-century NIL activities and, more broadly, exploitative actions by third parties tied to NIL activities, could interfere with a college athlete’s ability to pursue an education and earn a bachelor’s degree.
There is a growing recognition within college sports circles, within the beltway in Washington, D.C., and for college sports fans keeping track -- that a federal NIL law that ensures consistency and equal access for all college athletes across the country is where NIL needs to land. This universal federal solution is preferred to the current patchwork of inconsistent, state-by-state legislative solutions grabbing periodic headlines. For Justice White, he may, too, have favored the federal solution drawing from his own career experience. In contests between federal authority and state power, White almost always voted in favor of federal authority, perhaps applying lessons learned in the Justice Department dealing with recalcitrant Southern governors during the civil rights movement.
White’s Judicial Legacy was Complicated
In 2012, Constitution Daily contributor Lyle Denniston noted that White continued (and continued losing) his battle against the Court’s embrace of what lawyers and judges call “substantive due process.” In layman’s terms, as Denniston noted, that phrase means that the government must respect the fundamental civil rights of all persons, even if a specific right is not mentioned directly in the Constitution -- as, for example, the right to an abortion. “Substantive due process” was the source of many modern civil rights rulings by the Court -- over White’s relentless objections -- beginning with his very first dissent as a Justice in Robinson v. California in 1962. He complained bitterly of “judge-made constitutional law.”
Denniston reported that Justice White’s most famous opinion for the Court -- and it has since been explicitly overruled by the Supreme Court -- came in the 1986 decision in Bowers v. Hardwick. That ruling refused to recognize a constitutional right of privacy for homosexual conduct between consenting adults in private. In 2003, a year after White’s death, the Court cast that ruling aside in Lawrence v. Texas, creating just such a constitutional right.
Drawing from these cases, White’s position on individual rights might counter today’s advocacy for student-athletes to be permitted to earn income from utilizing their NIL.
Whizzer White Experienced the Dynamics of College Athletics and NIL
Although social media as we know it today was non-existent back in Whizzer White’s playing days of the 1930s, NIL and commercialization around college sports were not perfect strangers. College athletes had been utilized in Hollywood films back in the 1920s and 1930s including, in effect, roles in which they played themselves in feature films like “Huddle” and “Touchdown” that featured college football players in supporting roles.
For Whizzer White, the NIL issue was personified when, several years after his playing days, his stardom as a University of Colorado football player was immortalized in the 1955 Topps All-American football card set. Dozens of other college football greats like Otto Graham, the Four Horsemen, Bobby Dodd and Sammy Baugh were also immortalized in that Topps series.
Linking Justice White’s Athletics & Judicial Legacy to Modern Day Lessons
The most salient lessons to draw from Byron “Whizzer” White’s legacy may have best been captured by Nicholas DeB. Katzenbach, a Yale Law School classmate of White’s who later served with him in the Justice Department.
Mr. Katzenbach wrote that Justice White's work on the court reflected his ''belief that hard work and determination can lead to success, and a lack of sympathy for those who abuse power and privilege as well as for those who whine about bad luck.''
White’s recognition of the value of hard work and determination are longstanding credos of college sports and the student-athlete experience. Meanwhile, White’s sentiments about power and privilege, as described by Katzenbach, reflect White’s potential inclination to declare that the NCAA and its member schools do have a privilege and responsibility to steward college sports and student-athletes in a more equitable way that aligns with today’s modern trappings. The NCAA’s current restrictive rules related to NIL usage by student-athletes might not garner much sympathy from Justice White if he were presiding on the Alston case before the Supreme Court today.
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