Paying College Athletes/Letting Them Get Endorsements

[The Human Q-Tip]

If this is the case, eliminate the ncaa entirely because they serve absolutely zero purpose if they’re abdicating the oversight and enforcement responsibilities.

I would argue they aren't abrogating that responsibility as much as it has been taken away from them by some courts that have said they are not permitted to have oversight or enforcement of those issues. Or at the minimum, they are at massive legal risk if they attempt solutions that some judge later determines were illegal.

However, I assume the NCAA does a lot more than just regulate compensation -- it likely handles rules, on-field competition elements, tournaments, etc.. After all, the NCAA was formed decades before there were significant revenue issue, so it would seem to have some non-revenue related responsibilities.

But if you are right and it isn't really doing anything else, I imagine the schools will eventually quite supporting it. As for it being all about the money...again, I think that's far more likely to be true when you're talking major college football. But for most of the rest of college athletics....there just isn't much money in it. If you take football out of it, college sports collectively are a massive financial loser for every school that participates. Yet, that also is the vast majority of what the NCAA actually deals with.

ETA: I will say this, though. I believe that before we look to dismantle college sports as they currently exist, the first thing that should be done is to end the NFL's age/year based restrictions, and make all 18 year-olds/high school class grads legally eligible to be drafted. Get the "pros" out of college football by letting them actually become professional athletes. The current rule actually is a deliberate restraint on trade designed to push player development down to the college level.

 

[AZ_]

I would argue they aren't abrogating that responsibility as much as it has been taken away from them by some courts that have said they are not permitted to have oversight or enforcement of those issues. Or at the minimum, they are at massive legal risk if they attempt solutions that some judge later determines were illegal.

However, I assume the NCAA does a lot more than just regulate compensation -- it likely handles rules, on-field competition elements, tournaments, etc.. After all, the NCAA was formed decades before there were significant revenue issue, so it would seem to have some non-revenue related responsibilities.

The NCAA wouldn’t have to worry about this if it simply met the legal requirements that have left its anti-trust status in obvious peril.

Theyre more than capable of enforcement and oversight, given what they’re taking in from the labor of the kids and media rights, merchandise and non-profit status.

It’s a choice not to attempt complying with legal standards and minimums that have put its future in doubt.


This is where calling them employees, agreements with athletes and minimum standards would be a solve.

But if you are right and it isn't really doing anything else, I imagine the schools will eventually quite supporting it. As for it being all about the money...again, I think that's far more likely to be true when you're talking major college football. But for most of the rest of college athletics....there just isn't much money in it. If you take football out of it, college sports collectively are a massive financial loser for every school that participates. Yet, that also is the vast majority of what the NCAA actually deals with.

ETA: I will say this, though. I believe that before we look to dismantle college sports as they currently exist, the first thing that should be done is to end the NFL's age/year based restrictions, and make all 18 year-olds/high school class grads legally eligible to be drafted. Get the "pros" out of college football by letting them actually become professional athletes. The current rule actually is a deliberate restraint on trade designed to push player development down to the college level.

But they’re not creating additional losses from a world in which they’re paying players.

Theyre already calculating the value of scholarships as expenditures that help inflate the “losses” incurred by the universities.

Simply allowing the athletes to share in revenues generated is a no-brainer:

• The highest-grossing college athletes reap only a very small share of the revenues they generate during their college careers. Of the $15.8 billion in revenues that went to the NCAA's Division I athletics enterprise in 2019, only $2.9 billion — 18.2 percent — was returned to athletes in the form of athletics scholarships and 1 percent spent on medical treatment and insurance protections. In contrast, 35 percent was spent on administrative and coach compensation and 18 percent on lavish facilities (see here). And, what goes to college athletes is distributed among men's and women's teams in many other Division I sports — such as track, lacrosse, field hockey, swimming, and wrestling — that do not generate the same revenues as football or men's basketball. A recent player-level analysis finds that the existing restrictions on paying college athletes effectively transfers resources away from students who are more likely to be black and more likely to come from poor neighborhoods towards students who are more likely to be white and come from higher-income neighborhoods.

There is likely little net change to balance sheets in a world where players are officially considered employees and sign contracts.


We have to move past the “threats” to other non-revenue generating sports if they’re profitable enough to still be offering them scholarship value.

 

[AZ_]

Relevant:

 

[AZ_]

 

[The Human Q-Tip]

The NCAA wouldn’t have to worry about this if it simply met the legal requirements that have left its anti-trust status in obvious peril.

What exactly do you mean by "legal requirements?".

If it is just antitrust, the only difference if they'd "complied' all along is damages for past actions. But it wouldn't change anything in terms of what the NCAA and schools would have to do moving forward. Because regardless of whether you are complying voluntarily or by court order, you're complying. So they'd be in the exact same place in terms of having to operate under those rules.

If by "legal requirements" you also mean treating them as employees, there is no current legal requirement to treat student athletes as employees. The only two federal circuit courts to have addressed the issue have determine that they are not.

They're more than capable of enforcement and oversight, given what they’re taking in from the labor of the kids and media rights, merchandise and non-profit.

The problem is that there is no legal clarity as to what kinds of enforcement and oversight the NCAA and individual schools are still permitted to do without a judge coming down the pike later, holding them liable, and assessing damages. There was literally another decision just last week from one judge that eliminated the NCAA's restrictions on NiL during recruiting and when in the transfer portal. Maybe that will survive on appeal, or maybe it will be overturned. But the point is that there is no clear legal guidance regarding how the NCAA can put any restrictions or enforcement at all on NiL,S, direct compensation, or player movement.

I think it would be great for everyone involved if Congress passed something to provide legal clarity. I'm not advocating for any policies in particular - I'm just saying that the current system of ad hoc decision-making by trial judges that then have to percolate for through the appeals process for years, and that may well conflict with each other is a bad system. I think the only reason Congress won't due that is that it is gutless. It doesn't want to piss off any interest group, and it doesn't want to get blamed if something it does backfires. But that is their freaking job.

Theyr,e already calculating the value of scholarships as expenditures that help inflate the “losses” incurred by the universities.

I've brought this up a few times and I don't think you've addressed it. More than than 98% of college athletes do not receive a full or even a partial scholarship - including some on major football teams. So if all college athletes have to be considered employees, you now have that 98% entitled to wages and benefits when they weren't even receiving a partial scholarship before. So there would be no offset of those costs against a scholarship. It would just be a huge additional cost.

 

[AZ_]

Here’s an idea of what the NCAA is attempting to “enforce” at this stage:




While there is no legal requirement to treat athletes as employees, their efforts to restrict economic rights and refuse to allow athletes to share in revenue streams like media rights have repeatedly turned up illegal or struck down by the courts.

Figure out an alternative that doesn’t wind up with a STRONG chance of being struck down by a court, and everyone can still go home happy.


Congress may be gutless, but the NCAA can certainly find a way to cut athletes in without designations as employees and circumvent the legal challenges associated with profiting off the unpaid labor of students.

Establishing clear timelines for transfers, clear guidelines and communication windows for NIL. Colleges and universities are all talking about solutions and the NCAA is not.

They are gutless and don’t need federal protection to work hard and achieve a middle ground.



Not all athletes are guaranteed wages and benefits, but they might be if given a fair shot in court. It’s gutless to beg Congress to stop that while attempting to maintain the scheme in which the ncaa profits from them.

 

[AZ_]

Ohio is still suspending players for playing football.

 

[Pioneer10]

I kind of disagree with that. You do have college football junkies who follow all the recruiting of the high end players diligently, but most fans don't. If the best 50 players in college football never went to college at all, but went straight into the pros, I'll bet it would have a negligible effect on the popularity of college football. The non "pro-prep" schools would be unaffected, and even the Alabama/Ohio State/Clemson/Texas fans would still be just as excited chasing a national championship despite the absence of some guys who skipped college completely.

It's the schools themselves - that college "brand" - competing against each other, not the individual players, that are the primary draw. College football was massively popular before pro football was big, and even before TV. You supported the college not because of the particular players, but because they were players representing that college. That was the best underlying source of the attendance/popularity.

Heck, I wish independent minor leagues would start up and siphon off the top 100 or so players from ever entering college at all. I think it would improve college football for fans because you'd have more stability and more 4 year players.



Agree 100%

Maybe but you and I are old enough to remember how big NCAA basketball was. I mean the tournament is still big but it's a shell of what it was like when you had the Fab Five vs Duke or Georgetown (Ewing) vs NC (Worthy, Jordan hitting the game winner).

Right now you don't have that talent and NCAA basketball is just not on as popular or on the level of consciousness that other sports had. Those NCAA title game in 80's were legit everyone would watch type of events was the only game outside of the Super Bowl where you had a lot of talent and winner take all format.

 

[AZ_]

Revenue sharing:

 

[The Human Q-Tip]

Figure out an alternative that doesn’t wind up with a STRONG chance of being struck down by a court, and everyone can still go home happy.

Can you describe what you think a suitable alternative would be? Because personally, I think that's impossible. If you apply antitrust laws to the NCAA/conferences as if they were regular for-profit businesses, I can't think of a solution that the schools will like. And I also can't see lawyers for students settling for anything less than complete free agency with no restrictions on player movement or compensation, and then there is the reality that some of those lawyers will push for student-athletes (including the 98% not on scholarship) being classified as "employees" under the Fair Labor Standards Act and workers compensation laws.

I just don't see a middle ground that is acceptable to both groups - especially when you consider that those groups are not even close to being monolithic. The largest/most successful athletic programs have different priorities and capabilities than the much larger number of less financially successful programs, and agents/lawyers representing high-dollar athletes in football and basketball have vastly different interests from those representing small-school athletes, and athletes in non-net revenue producing sports. I can't fathom a "make everyone happy" solution under the current legal framework.

Congress may be gutless, but the NCAA can certainly find a way to cut athletes in without designations as employees and circumvent the legal challenges associated with profiting off the unpaid labor of students.

I disagree with that. I don't think the college sports system has a reliable "out" from legal challenges (remembering that they can come from all 50 states, with each state having its own legislative/regulatory/legal system). Again, if you want to toss a specific idea out there, that would be helpful. I just don't see one.

Establishing clear timelines for transfers, clear guidelines and communication windows for NIL. Colleges and universities are all talking about solutions and the NCAA is not.
They are gutless and don’t need federal protection to work hard and achieve a middle ground.

This makes my point. Timelines for NiL communications windows already were struck down by a federal judge late last month. Maybe his ruling will be upheld on appeal, maybe not. The point is that it is impossible for the NCAA to establish clear timelines that don't expose them to political liability when any one of the more than 650 federal district court judges, and literally tens of thousands of state court judges, have the power to toss them out.

Again, the core problem is that we're not talking about the NCAA talking with just one entity, and coming to some universal deal applicable all students and all schools. Not such entity does or can exist. We're talking hundreds of thousands of student athletes represented by their own lawyers, able to file lawsuits in any one of the thousands of courts around the country.

Not all athletes are guaranteed wages and benefits, but they might be if given a fair shot in court. It’s gutless to beg Congress to stop that while attempting to maintain the scheme in which the ncaa profits from them.

I agree 100% with the bolded. There is no way for the NCAA to strike a deal that prevents a student-athlete from filing such a lawsuit, so there's no way for the NCAA to "bargain" its way out of that problem. It's legally/literally impossible, even if they agreed to give athletes 100% of all revenues, and lifted all restrictions on movement, including movement between schools on a game by game basis. Such a lawsuit could still be filed by a student athlete in a sport that doesn't raise enough revenue to pay minimum wage, workers comp, etc..

 

[AZ_]

Revenue sharing and allowing athletes to benefit from the money they’re making the NCAA through “events” is certainly a solution which satisfies the players need to be compensated.

Maybe @The Human Q-Tip is right and the NCAA model is completely unviable from a legal standpoint.


Eventually, the luster wears off NIL from an earnings standpoint, and players are getting paid a fair market value.

Ultimately, college football will continue with or without the NCAA making decisions, or completely stop participating in oversight as they’re doing now.

The sport is absolutely thriving and it’s not going to slow down by getting less controversial by continuing the conversation over players having monetary value.

 

[The Human Q-Tip]

Revenue sharing and allowing athletes to benefit from the money they’re making the NCAA through “events” is certainly a solution which satisfies the players need to be compensated.

Maybe @The Human Q-Tip is right and the NCAA model is completely unviable from a legal standpoint.

The problem is that just because that might be a fair or reasonable solution doesn't mean that legal challenges won't still succeed. The antitrust laws weren't drafted with sports competition in mind -- that's why the professional leagues need either a statutory or judicial partial exemption from those laws to operate because the very nature of selling competition as the product requires rules and structure that would otherwise violate antitrust law. Equally important for pro sports is that you have a union that enables collective bargaining, so you can cut deals that are legally binding on everyone.

At the college level, that problem is orders of magnitude worse because rather than having 30 or so teams in a single sport that all are for-profit entities with generally similar business models, and whose players are all clearly "employed", you have literally thousands of schools with multiple sports each, and with players that range from true amateurs to professionals in all but name. You can't/don't have unionization on a large scale because you have to be "employees" to have a union, and the sports/schools are all so different from each other that a single bargaining unit isn't appropriate even if you did deem them all "employees". Which obviously would almost certainly (I'm omitting the distinction between the definition of employee under the FLSA and NLRA) make most sports unaffordable.

Eventually, the luster wears off NIL from an earnings standpoint, and players are getting paid a fair market value.

The huge advantage of NiL over direct payments is that because they don't come from schools, Title IX isn't implicated. So you don't have male athletes who draw the most revenue surrendering half their market value to females who don't generate that level of revenue.

 

[The Human Q-Tip]

Revenue sharing and allowing athletes to benefit from the money they’re making the NCAA through “events” is certainly a solution which satisfies the players need to be compensated.

Maybe @The Human Q-Tip is right and the NCAA model is completely unviable from a legal standpoint.


Eventually, the luster wears off NIL from an earnings standpoint, and players are getting paid a fair market value.

Ultimately, college football will continue with or without the NCAA making decisions, or completely stop participating in oversight as they’re doing now.

The sport is absolutely thriving and it’s not going to slow down by getting less controversial by continuing the conversation over players having monetary value.

I think you may well be right about much of that. But the real problem is going to come from the impact of legal decisions on non-revenue generating sports. It will take time for the full impact of those decisions to be felt, though. I suspect that without congressional action, college sports will have far fewer participants down the road.

 

[AZ_]

 

[The Human Q-Tip]

On that second tweet, the NLRB has five members appointed by the President - with the consent of the Senate - who each serve 5 year terms. So one gets replaced each year. Because of this, the Board's orders tend to align more closely over time with the views of the then-current Administration.

The real issue is that the NLRB has no actual enforcement authority. Enforcement of NLRB decisions is by the various federal circuit courts around the country (skips the district court level), and those courts may take very different views on the same issue, so you could (and often do) have different labor law applied in different regions of the country.

But wait, there's more! The definition of "employee" under the National Labor Relations Act, which deals with unionization/collective bargaining issues, is different than the definition of "employee" under the Fair Labor Standards Act, which deals with issues such as minimum wage and overtime. And because you have all the different Federal circuits that are applying those statutory definitions to those two statutes, there are a lot of different permutations of who is classified as an "employee", and the what purposes.

Believe it or not, it gets worse because states also can have their own minimum wage/overtime rules, and their own definitions of "employee". And because workers compensation laws are administered on a state level, states can also have their own definitions for "employee" under state law.

Obviously, if federal law requires that somebody be treated as an employee, the state law cannot waive that requirement. But states certainly are free to impose greater requirements than are imposed by federal law unless the federal law in question expressly states to the contrary.

So for an issue as close to the line as whether or not student athletes are considered "employees" under those different laws, it is almost guaranteed that you are going to have a bizarre patchwork of laws from state to state. And because teams from one state often travel to another state to play games...it's just asking for mass confusion/disorganization/differing standards.

There's no possible way for the NCAA to fix that because membership in the NCAA is not mandatory for schools. If the NCAA itself were to require that its member schools treat student athletes as employees for all purposes, the almost certain result would be a mass exodus of schools from the NCAA, and the formation of other competitive bodies, in addition to the NAIA, etc., that didn't agree with the NCAA's position. And that wouldn't solve the underlying problem of needing clear, unified rules.