All recent disputes involving the NCAA come back to one essential question: do college athletes deserve to be paid? While the question is difficult to answer, it at least seems simple in what it’s asking. Though, that may not be the case. What, after all, is compensation?
While many people have visions of college athletes being directly paid, like the pros, albeit on a smaller scale—some athletes aren’t asking for even that much. Things like guaranteed scholarships are what’s being requested, and collegiate conferences and institutions are making major strides there.
But then, is it enough? As we walk through all the issues in the current environment, seems at this point the NCAA is due for a re-haul of the ideas and models they use to do their business, and though there’s been plenty of changes, a recent lawsuit alleges that it might not be enough for student athletes.
They’re organizing
As college athletes push for more recognition as workers, unionization seemed like the logical next step. Though the NCAA fought them on it, they lost a huge blow when the NLRB ruled that Northwestern football players were employees of the university, and had a right to unionize and bargain collectively. It wasn’t the first in the NCAA lawsuits, but it set the stage for how athletes could argue for better wages.
For now, the NLRB has only changed the precedent for private universities (public universities are governed by state law) but will public universities be quick to follow suit? Probably not: in retaliation, Michigan is considering a bill that would prevent student-athletes from attempting to unionize. Although none have, as of this writing, attempted any sort of unionization, the ban would prohibit intercollegiate athletes at public universities from doing anything of the sort.
Fair Wages
But not being in a union isn’t stopping athletes from pushing for proper compensation. That charge is being led by Sackos v. NCAA, et al, which was filed by a former soccer player at a university in Houston. The suit alleges that the NCAA, and its Division I schools, violated the FLSA by not paying their athletes for the hours they worked–namely practicing and playing sports.
Thanks to the Northwestern case, Sackos is the next step, in a sense, for a remodel of the paid athlete front writes Jonathan L. Israel of Labor & Employment Law Perspectives, who calls the redistribution of money to the student athletes seemingly inevitable. Players have already won the battle for compensation beyond scholarships, in a sense. O’Bannon v. NCAA struck down the NCAA’s regulations that prohibits compensating athletes for use of their image, likeness, or names. Though the NCAA has already appealed the decision, the decision was a landmark ruling against the supposed “amateurism” that’s so important to those who run college athletics.
An iron grip?
Among many this doesn’t paint a great portrayal of the NCAA. In fact some athletes have brought a new class action against the NCAA alleging that the athletic association and its 11 conferences have formed a monopsony over college athletes. As Shawn N. Butte writes for Collegiate and Professional Sports Law Blog:
The new class action accuses the NCAA and its members of unlawfully agreeing that no college will pay an athlete any amount that exceeds the value of an athletic scholarship. This agreement, the plaintiffs argue, violates the Sherman Act and limits the value of athletic scholarships at an amount substantially below what an athlete could earn for his or her services in a competitive market. As a result, the arbitrary cap imposes a lower standard of living and significant hardships on college athletes.
They assert that because the NCAA and its members are the “only game in town” in providing compensation to college athletes, such a restriction creates an unlawful restraint of trade in (1) the market for NCAA Division 1 football player services; and (2) the market for NCAA Division 1 men’s basketball player services. Plaintiffs conclude that through these restraints, the NCAA and its members have created a “take it or leave it market” for college athletes.
“In enacting the challenged restraint, the NCAA and its members have ultimate power to artificially depress compensation to college athletes. If a top-tier athlete doesn’t like it, he or she essentially has no reasonably close alternative. That is the nature of a monopsony,” identifies the complaint.
Again, this raises the question that will have to be addressed in the future: is a scholarship, even with more than its traditionally provided, really enough?
So what’s a college athlete to do?
Believe it or not, most higher education institutions have more at stake than just the lucrative deals they currently have. As Richard Posner blogs at The Becker-Posner Blog, there is some semblance of trying to maintain an educational environment:
[If college athletics fully stripped the amateur clause] college teams would be largely composed of athletes who had no interest in or capacity to obtain a college education; awarding them a degree would be meaningless. The college would be engaged in a business unrelated to its academic mission and would thus have to pay taxes on its teams’ earnings. Worse, alumni donations to their alma mater, which are stimulated by the success of the college’s teams, would wilt if the teams were composed of non-students. If the University of Chicago bought the Chicago Bears, and renamed the team the University of Chicago Bears, would alumni of the University of Chicago write bigger checks to the University?
The party line is, after all, that they are student-athletes. But a key part of the discussion around NCAA athletes, says labor and employment attorney Nancy Yaffe of Fox Rothschild, is why college students are asking for this. This isn’t purely driven by money or attempts to be a young adult in a union, it’s about getting treated fairly:
When we train employers on how to stay non-union, we focus on two things: fair compensation and appreciation of work done. Apparently, the NCAA rules allow for neither, and that is the problem.
I was surprised to read that the players don’t necessarily want to be paid as employees. What they want is to be guaranteed a spot at the school with paid tuition until they graduate, or perhaps some incentives by the schools to get them to complete their educations. Apparently they are also hungry and the rules limit how much food the schools can provide. They want medical coverage for sports related injuries, especially those that might last way after their school years end.
They also have safety concerns, including better procedures to reduce head injuries. They want to stay at school if they are injured or their sports-career is not successful. And finally, they would also like to be able to pursue commercial sponsorships much like Olympic athletes do, to cash in on their “15-minutes” of fame and defray some of the costs associated with sports. For example, college athletes do not have time to get part-time jobs and many sports have NCAA rules that actually prevent them from doing so.
What these athletes want is pretty darn reasonable, and right now they don’t have a seat at the table to get the issues addressed in any significant way. They feel used and abused, and that is always a problem.
Yaffe notes that one way or another the NCAA is due for a change, although she, like Posner, is unclear on whether that would be best served with a union or the “slippery slope” of defining athletes as employees is the best one.
As Yaffe alludes to, many athletes want only to be treated fairly—and that may not necessarily include traditional compensation for time spent playing sports. And already, some schools and conferences have made major strides, not necessarily on compensation, but on what comes as part of the scholarship package.
Michael B. Ackerstein and Gregg E. Clinton of Collegiate and Professional Sports Law Blog wrote in July on Indiana University’s potentially starting quite the trend with its “Student-Athlete Bill of Rights,” an agreement that formally identifies rights guaranteed by the school to its student-athletes during their time at the university and beyond. Really, it’s exactly what Yaffe alluded to above:
The Bill of Rights, comprised of ten guaranteed rights, features these key provisions: (1) Four Year Scholarship Commitment-the guarantee of four-year scholarships to all student-athletes in “head count” sports; (2) Lifetime Degree Guarantee-the creation of a program under which IU will pay the tuition of student-athletes who leave the University before graduating, but return later to complete their degree; (3) Collective Voice-Student-athletes will be given a guaranteed voice through the Student-Athlete Advisory Committee, including input on searches for new head coaches; (4) Comprehensive Health Safety and Wellness-Comprehensive physical exam, including screening echocardiogram and baseline concussion testing before beginning competition and all medically related services for any injuries or illnesses suffered during competition are provided free of charge to the student-athlete. (5)Cutting Edge Technology-the promise of a tablet, such as an iPad, to all student-athletes as well as internal internship opportunities.
Ackerstein and Clinton couldn’t have been more correct in saying it might start a trend. Shortly thereafter, the Big Ten became the first conference to guarantee scholarships for the duration of the athlete’s enrollment, and the Pac-12 universities adopted sweeping reforms for student athletes that included guaranteeing scholarships and improving health care. Just a little more than two weeks ago, the Big 12 became the latest college conference to offer guaranteed scholarships, so the trend is continuing.
Still, these are but scholarships. Even now that they come with a guarantee, and increased benefits, they are still only scholarships. And as the lawsuit recent lawsuit above alludes to, that just might not be enough.