Like so many of our nation’s beloved institutions, in recent years the National Collegiate Athletic Association (NCAA) has proven much less stable than previously thought. For the better part of a century, the NCAA has robbed its workers, the athletes who participate in “amateur” college sports, of all the immense wealth that they create. A recent heightening of this system’s inherent contradictions, exacerbated by the choice to send unpaid athletes to work in the midst of the pandemic, has forced the NCAA to admit that some type of reform is necessary. But what will that reform be?
In the last two years, legislators across the country have finally come around on the idea that college athletes should be allowed to profit from their labor. Lawmakers in California, Florida, Colorado, and elsewhere have already passed laws to this effect, the earliest of which will come into force on July 1 of this year. Many more state legislatures are considering similar bills. The NCAA has asked Congress to weigh in, fearing an unenforceable “patchwork” of state laws, and several bills have appeared at the federal level as well. Within the next year, it seems likely that most, if not all, college athletes will be legally entitled to earn money from playing sports.
This situation feels unprecedented—unpaid labor in college sports is as American as the flyover before an NFL game—but it’s playing out in a predictably American way. Having realized that some regulation is going to happen and some athletes are going to make money, the representatives of those currently profiting have set about turning their own, limited vision for change into legislation. NCAA bureaucrats, conference officials, university administrations, and athletic directors now seek to put the issue to bed while minimizing the threat to their own bottom line.
Broadly speaking, every recently-passed or pending bill on this issue falls into one of two buckets: those that recognize that players are entitled to the wealth they create, and those that do not. The NCAA and its Republican allies are willing to allow players to make money off advertising deals and sponsorships, creating new side-hustles for athletes without redirecting any of the money that currently flows into college sports—the NCAA reports that its members took in $18.9 billion in revenue in 2019. Other lawmakers, like Senators Cory Booker and Richard Blumenthal, want to force schools to take a percentage of their sports-related income and share it with the athletes whose labor created it, guaranteeing athletes compensation rather than simply removing the barriers.* The difference between these two approaches, between allowing college athletes to make money and actually paying college athletes, is profound. It’s the difference between “access to healthcare for all” and Medicare for All, between quietly acknowledging an injustice and actually correcting it.
Every single piece of legislation that has been passed or proposed on this issue allows some degree of “NIL” rights; that is, it grants players the right to profit from the use of their name, image, and likeness. It should go without saying that these rights are inalienable, but giving them up is part of the deal when you agree to play an NCAA sport. Before the issue arrived at a statehouse near you, the fight over compensating college athletes raged in the courts. Lawsuits lodged by UCLA basketball player Ed O’Bannon led to some high-profile wins for athletes: in 2014, O’Bannon’s class-action suit against EA Sports for the unlawful use of players’ images in the NCAA Football video game franchise resulted in a settlement of over $40 million and the discontinuation of the game. (The prospect of reviving the series is a suspiciously big part of Cory Booker’s messaging on this issue). The following year, the Ninth Circuit Court of Appeals ruled in favor of O’Bannon and other players, deciding that the NCAA violated antitrust laws by denying athletes NIL rights.
(We should note that the Supreme Court recently decided to take up a different case, National Collegiate Athletic Association v. Alston, which centers not around NIL rights but around the question of whether or not the NCAA can limit the extent to which schools compensate athletes. It’s theoretically possible that SCOTUS could topple the NCAA in one fell swoop with its decision in this matter, but given that this court is more conservative than the one that ruled in Janus and Citizens United, I’m not predicting a win for the NCAA’s workers.)
The NCAA has accepted, in principle, the idea that college athletes will get compensation for the use of their name, image, and likeness. That may sound like a watershed moment for an organization dedicated to amateurism, but it should surprise no one that the NCAA’s proposal for how best to enshrine NIL rights in law is chock full of restrictions that would prevent athletes from actually getting paid. Chief among them: the NCAA, as well as an athlete’s school, would be able to bar athletes from signing deals that conflict with their own sponsorship deals, involve products or services that the NCAA doesn’t approve of (alcohol and gambling, to name two), or undermine “school values.”
In practice, that means broad powers for the NCAA and individual schools to stop athletes from making money. Under Armour wants to sign you, but you play at a school that partners with Nike? Too bad. DraftKings, the online sports betting company, want to put you in one of their ubiquitous commercials? Sorry, but gambling doesn’t align with NCAA values. You’ve worked out a deal to promote beard oil on your Instagram feed, but you just committed to BYU? Forget about it—school policy prohibits facial hair. More to the point, the NCAA also seeks to cap the amount of money players could make off ads, creating a committee that would determine what a “fair” rate for such deals is and prohibiting athletes from earning more than that.
Bills like the one recently passed in Colorado grant players NIL rights “except as may be required by the rules or requirements of an athletic association of which an institution is a member,” meaning that the NCAA can intervene in all the ways mentioned above. And even as it carefully, haltingly opens one door, the NCAA hopes to close another: bills like the one Florida Governor Ron DeSantis signed in June grant limited NIL rights but explicitly prohibit schools from paying athletes.
The NCAA loves to make hay over the issue of recruiting, insisting that NIL-granting legislation must also ensure that colleges cannot lure athletes to their programs with promises of financial compensation. But the notion that the recruiting process could ever not involve financial calculations is absurd. Choosing a college is a financial decision for everyone, particularly those who are pinning their hopes for a long and prosperous professional career on a successful stint as a college athlete. Moreover, schools and their boosters have been using financial compensation and expensive gifts like cars to lure athletes to their campuses since long before the NCAA banned the practice, and it continues to this day. If college athletes are allowed to sign advertising deals, of course their choice of college will affect how much money they make, but that would be nothing new. Nevertheless, people like South Carolina Republican Rep. Jeff Duncan parrot the NCAA’s language as they promote compromise bills like the Student Athlete Level Playing Field Act, saying that Congress must maintain “the integrity and distinctiveness of college sports.” The “distinctiveness” in question is amateurism, the NCAA’s word for unpaid labor.
The Level Playing Field Act, like the Florida law, explicitly stipulates that athletes cannot be considered employees of their universities. Bills of this nature are not only inadequate, they are unjust. Labor is entitled to all that it creates, not merely whatever it can glean from side-hustles. As the wonks at FiveThirtyEight have demonstrated, some college athletes could get rich immediately if allowed to monetize their social media properties, but others, probably the huge majority, would barely be able to make a pittance. Whatever your views on influencer culture, it’s a way for people to make money (interestingly, college cheerleaders are already among those who do so), and the NCAA has no right to prevent college athletes from participating. Acknowledging that college athletes are people with the right to profit from their work would be a step in the right direction, but it’s not the same as acknowledging that college athletes work for their schools. That would make them employees, entitled to the benefits that companies owe their workers by law, and that is what really scares the NCAA.
The NCAA holds that, while players should be allowed to profit off their own images, they cannot band together to license their images (as NFL and NBA players do, which is why their names and faces appear in EA’s games) without a union. A natural follow-up question would be, “Ok, then why can’t they form a union?” The NCAA’s response would almost certainly involve some sort of patronizing paean to the glory of amateurism, but the real answer is that a union of college athletes would threaten the current system in a way that no single player ever could. A player like Clemson quarterback Trevor Lawrence, one of the most recognizable athletes in America, could probably make millions off of endorsement deals and social media partnerships, but he could not single-handedly win a cut of the $277 million his conference, the ACC, made by selling its broadcasting rights in 2018-2019.
The second category of bills, the good ones, are the ones that pose precisely that threat. Though it pains me to compliment Cory Booker, a champion of charter schools and a dadcore icon, his College Athletes Bill of Rights falls squarely in the Good category (you may be interested to know that Bernie Sanders is a cosponsor). Booker’s bill recognizes what the Florida and Colorado laws deny: college athletes’ free labor is being exploited for profit. The bill would make colleges share half of their profits from revenue-generating sports with the athletes who generate it. It would create a trust fund to cover all athletes’ out-of-pocket medical costs while in college, as well as all expenses from sports-related injuries for five years after their college careers end. It would also prevent coaches and administrations from interfering in athletes’ choice of major, create an independent committee to make sure the NCAA and schools followed the new rules, remove many of the barriers and technicalities that currently prevent players from transferring schools or decommitting from one to another, and, of course, grant them full NIL rights.
This is radical by current standards, but entirely fair when one considers the billions of dollars that unpaid athletes’ labor generates. It’s time athletes benefitted from all that wealth. Crucially, the bill also addresses the healthcare needs of all college athletes, not just the ones whose work makes money for their schools. Even if a player isn’t creating wealth for a school, they’re sacrificing enormous amounts of time and risking their physical wellbeing while representing it. Booker’s bill is not only about paying players in accordance with what they deserve, it’s about de-centering profits and coaches’ salaries while putting the wellbeing of athletes at the heart of our approach to college sports.
It only makes sense that the Republican Party has aligned itself with the more restrictive view, the one that refuses to acknowledge a fundamental injustice. Although it’s not immediately clear why the party of free-market economics would oppose the freeing-up of the college labor market, this wouldn’t be the first time that the GOP abandoned free-market principles in favor of a system that transfers wealth upwards, toward the powerful and away from the weak. The GOP is largely a party of white, male managers—recall that a former SEC head coach, Tommy Tuberville, was recently elected to the Senate in Alabama—and college sports, where teams’ rosters turn over entirely every four years but coaches can stick around for decades, is in many ways tailor-made for a worldview that sides with bosses over workers.
Frankly, the Republicans aren’t the ones I’m worried about. Keeping in mind that our next president’s proposed solution to unchecked police violence is for officers to “shoot [suspects] in the leg instead of the heart,” I worry that liberals will quickly abandon the moral high ground in favor of a compromise that sells out athletes and fails to enshrine in law the fundamental truth that they deserve compensation. The NCAA’s eagerness for quick action on this issue is almost certainly calculated to bring about exactly the kind of rushed, unsatisfying compromise that Democrats always seem willing to make. It would be a shame and an outright injustice for all the ferment of the recent months and years to conclude in a weak bill that lets star quarterbacks give DoorDash a shoutout on Twitch while their teammates continue to be exploited. College athletes—all of them—deserve more.
We should note that Booker’s bill doesn’t pay all college athletes, just those whose work turns a profit. While major sports schools like the University of Alabama or Texas A&M do rake in the bucks, what we’re dealing with is a number of high-profile exceptions rather than an entire ecosystem of schools that profit from sports. If a school does see a net gain from athletics, it’s almost always because its football and/or men’s basketball programs (or, much less commonly, women’s basketball or hockey) bring in enough money to cover the losses generated by, well, all the other sports. The argument that all college athletes do work that benefits their university, and that they should all receive financial compensation regardless of whether they bring in money for the school, is one that I agree with in principle.
Looking at things at a practical level, however, I must begrudgingly admit that the administrators at many universities—those with fewer revenue-generating sports programs or none at all—are probably not lying when they say that being made to pay every athlete would force them to shut down most or all of their athletic department. Again, in principle I’m sympathetic to the argument that they all should be shut down, but in practice that would mean summarily ending thousands of young athletes’ careers. The athletes certainly aren’t in favor of that, and neither am I. Athletes I know who played non-revenue sports in college say they’d rather have their healthcare covered, get rid of NCAA restrictions, and stop coaches from interfering with players’ courses of study, and Booker’s bill does address those issues. Should American colleges get out of the sports business entirely? Absolutely. I believe we can get there, but as we work toward that goal we should consider the wishes of the athletes whose exploitation is the entire reason for this discussion.
This post was originally published on Current Affairs.