The NCAA brings in more than one billion dollars per fiscal year. In 2019, the University of Alabama paid its coach over eight million dollars. All of the top ten highest paid NCAA coaches made more than five million dollars in 2019. However, none of their athletes profited a penny from this multi-billion dollar industry. Until recently, a college basketball video game could incorporate a player that looks just like a player, plays his position, wears his number on his jersey, and even has his mannerisms (this is the real story behind O’Bannon v. NCAA). No matter who makes how much money from the sale and notoriety of the game, the player does not get a penny simply because he is an athlete under the NCAA umbrella.
The NCAA is able to refuse a player compensation by using the most vague yet confusing arguments of all time: “preserving amateurism.” The NCAA calls its athletes “student athletes” and continuously attempts to distinguish these athletes from professional athletes by asserting a moral argument that the integrity of the game would be affected if students were to receive compensation for their athletic abilities.
The NCAA first began considering its athletes as “student athletes” in 1955 when the widow of Ray Dennison, a football player for Fort Lewis A&M, attempted to recover workmen’s compensation death benefits when he passed away from a head injury. The NCAA refused to pay the benefits because Dennison was a “student athlete” and the college was “not in the football business.” Pulitzer Prize award winner Taylor Branch argues that the term “student athlete” was deliberately ambiguous. He writes:
“College players were not students at play (which might understate their athletic obligations), nor were they just athletes in college (which might imply they were professionals). That they were high-performance athletes meant they could be forgiven for not meeting the academic standards of their peers; that they were students mean they did not have to be compensated, ever, for anything more than the cost of their studies. Student-athlete became the NCAA’s signature term, repeated constantly in and out of courtrooms.”
Using the “student athlete” argument, the NCAA has been able to avoid lawsuits and win those that make it to court. For example, in 1991, Kent Waldrep, a football player who was paralyzed by an injury in 1974, sued after the NCAA began carrying catastrophic insurance for football players. After several appeals, in 2000 the Texas Supreme Court held that Waldrep was not an employee. In its decision, the court cited the NCAA bylaws’ definition of “student athlete” which states, “one who engaged in athletics for the education, physical, mental, and social benefits he derives therefrom, and to whom athletics is an avocation.”
NCAA v. Oklahoma Board of Regents, decided in 1984, seemed like a loss for the NCAA as the Supreme Court effectively ended the NCAA’s monopoly over t.v. contracts for college football. However, this was not a complete loss. Within the majority opinion, Justice Stevens wrote
“… moreover, the NCAA seeks to market a particular brand of football – college football. The identification of this ‘product’ with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the ‘product,’ athletes must not be paid, must be required to attend class, and the like.”
This dicta established “athletes must not be paid.” Although it had nothing to do with the issue in the case or the holding, this language prevailed for over thirty years after NCAA v. Oklahoma Board of Regents. The NCAA was able to use this language for legal victories until O’Bannon v. NCAA. In O’Bannon, the court concluded that NCAA v. Oklahoma Board of Regents “gives the NCAA ‘ample latitude’ to adopt rules preserving ‘the revered tradition of amateurism in college sports’ … it does not stand for the sweeping proposition that student-athletes must be barred, both during their college years and forever thereafter, from receiving any monetary compensation for the commercial use of their names, images and likenesses.”
O’Bannon was not entirely a loss for the NCAA. Although the court held that certain NCAA amateurism rules violate federal antitrust law and therefore those rules constituted an anti-competitive conspiracy by the NCAA schools and conferences to deny men’s basketball and football players monetary value for their NILs. However, the Ninth Circuit Court of Appeals rejected the remedy proposed in light of these violations: It was proposed that schools may choose to pay players up to $5,000 per year while they are in college with payment coming after they leave school. The rejection of this remedy was a win for the NCAA. Today, the NCAA still tries to cling to the definition of amateurism through the O’Bannon appellate decision, which tied educational expenses to athlete compensation. In 2015, the judges wrote, “[t]he difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap.”
The last word has not been said on NCAA athlete pay. Athletes argue that they should be paid like any other college student with a marketable skill. A music student who plays at various venues on weekends should not be limited on what he can earn solely because he is a student. So why is this different for athletes? This is especially true in today’s world where the NCAA is a multibillion dollar industry. It seems like the California State Senate agrees.
This month, the Fair Pay to Play Act, co-authored by two State Senators, Nancy Skinner and Steven Bradford, cleared the State Assembly by a vote of 72-0. A version of the bill has already cleared the Senate. If signed by the Governor, the measure would go into effect January 1, 2023. The bill would enable student-athletes from the state’s 24 public colleges and universities to be paid indirectly via sponsorship agreements. The bill would also make it illegal for schools or organizations such as the NCAA to restrict or punish student athletes for seeking these kinds of agreements.
LeBron James took to Twitter to urge California residents to tell their state representatives to support the bill. He wrote, “[t]his law is a GAME CHANGER.” Ed O’Bannon, the former UCLA student athlete who sued the NCAA over name, image, and likeness rights also spoke with the media about the Fair Pay to Play Act. In an interview with CNN, he stated, “California’s in a really good position. They are changing the game. And from where we sit, we’re extremely excited about it.”
California is not alone in this battle. The state legislatures in South Carolina, Washington, and Colorado are in the process of introducing similar bills. Further, United States Representative Mark Walker, Republican of North Carolina, introduced a federal bill this year proposing to allow college athletes to be compensated for the use of their name, image, and likeness. Going even a step further, Kevin Parker, a New York State Senator proposed a bill that would result in colleges paying their student athletes directly. The proposed bill would allow student athletes to receive compensation including for the use of a student’s name, image or likeness, allow student athletes to seek professional representation, and require colleges to establish an injured athlete fund to provide compensation to athletes for career-ending or long-term injuries. Parker even added an amendment that would require college athletic departments to give a 15% share of annual revenue to student-athletes, which would be divided equally.
However, leaders in college sports warn California that this could essentially ruin any possibility of competing with other NCAA universities. They say California colleges could be prohibited from competing for NCAA championships because they would have an unfair recruiting advantage. This prediction is questionable as the bill, as proposed, would make it illegal for organizations such as the NCAA to restrict or punish student athletes for seeking sponsorship agreements. It seems that not being able to participate in championship games would be a restriction and/or punishment.
LeBron James is not the only celebrity athlete to speak on the topic. Tim Tebow publically criticized the Fair Pay to Play Act, stating that college athletes should be focused only on the team and the university, and not themselves as individuals. On ESPN’s First Take he stated:
“When I was at the University of Florida, I think my jersey was one of the top-selling jerseys around the world. It was like Kobe, LeBron and then I was right behind them, and I didn’t make a dollar from it. But nor did I want to. Because I knew that going into college what it was all about. I knew going to Florida, my dream school, where I wanted to go, the passion for it. And if I could support my team, support my college, support my university, that’s what it’s all about.”
Great for Tebow. But this is not the same reality for all college athletes. Many college athletes go to bed hungry, don’t have families to go home to on the weekends, and face many other economic challenges. We as a society cannot expect these athletes to lend their talent and skill for no compensation beyond the cost of attendance. We cannot expect these athletes to only support their team and university and not be concerned about their own financial wellbeing. We especially cannot expect these athletes to not worry about their futures and more importantly, their careers when they are risking the possibility of never being able to become a professional should an injury during their college years take that opportunity off the table. The risk of injury alone should put the importance of compensating students for their unique talent and skill to the forefront of the NCAA’s concerns about its “student athletes.” Oftentimes, these injuries end careers, leaving the athlete with nothing to show for the talent and skill they lend their universities.
Although some may argue that given the rising cost of attendance for colleges and escalating student debt, a college degree is quite valuable, the cost of attendance is barely a fraction of what colleges currently profit from athletics. The Aspen Institute reports that in 2015, the fifty-three public schools from the five major conferences paid their football coaching staffs (530 individuals) a combined $405.5 million, compared to $179.8 million in scholarships to their football players (4,979 individuals). In 2017, the Knight Commission on Intercollegiate Athletics released internal NCAA polling showing that among all Americans, 79% say major universities value money ahead of college athletes. 79% of people rarely agree on much, but they do agree that the compensation structure (or lack thereof) for student athletes competing in the NCAA is clearly a telling allocation of resources, showing who – and what the NCAA cares about most.
Photo Credit: Eric Draper
3L at University at Buffalo School of Law. If I am not in class or studying, I am outdoors with my beloved pit bull pups or cheering on the Buffalo Bills and Detroit Pistons with my husband.