The message to the NCAA couldn’t be louder, and yet so few in college sports seemingly want to hear it. The threat couldn’t be bigger, and yet there is no actual plan to deal with it.
After a series of legal defeats that have left the NCAA vulnerable, more unpopular than ever and begging for Congress’ help, there will only be so many opportunities to come up with a model that both complies with the law and maintains the general structure of how things currently work without blowing the entire enterprise to smithereens.
Where’s the creativity among all the athletics directors and conference commissioners who have gotten fabulously rich off college sports to come up with a system that justly benefits both the Alabama quarterback and the Division 2 golfer without pretending they are the same? I’m not seeing it.
And yet, after another bad day in court last week that left a panel of judges almost offended at the NCAA’s concept of amateurism, never has there been more of a need for new ideas.
To be perfectly clear, Johnson vs. NCAA – a case that asserts Division 1 athletes are employees and entitled to wages under the Fair Labor Standards Act – has not been decided. A hearing last week at the U.S. Court of Appeals for the Third Circuit centered only on whether the case will move forward or whether it gets dismissed, which is of course what the NCAA would prefer.
But several experts who watched the hearing came away with the distinct impression that the NCAA’s attorneys struggled under the judges’ line of questioning, with one even saying, “I don’t see how college athletes aren’t employees” given how much control coaches have over their schedules and the economic realities of a multibillion-dollar sports enterprise.
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By now, this is a familiar pattern. The NCAA’s arguments in favor of amateurism sound ridiculous to judges when they are held up against the law because they are ridiculous in any other context than the tradition of college sports.
When the legal assault on amateurism began more than a dozen years ago with Ed O’Bannon filing a lawsuit that alleged antitrust violations over the use of his name, image and likeness, judges seemed willing to show at least some deference to the NCAA as a complex and unique American institution that does not fit into a well-defined box.
But now, after enough of these cases have filtered through the court system, that sentiment no longer exists. The mood now tilts toward Justice Brett Kavanaugh, whose concurring opinion in NCAA v. Alston – a case that went 9-0 against the NCAA – clearly lays out how stiff the headwinds will be for college sports going forward.
“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate,” Kavanaugh wrote. “And under ordinary principles of antitrust law, it is not evident why college sports should be any different.”
It’s time for the NCAA, conference commissioners, athletics directors and everyone else with a stake in the enterprise to get serious and read the room. Stop with the excuses and figure it out.
Instead, what you often hear is that schools can’t do something to pay football and basketball players fair value for the revenue they generate because it would also apply to track and field or soccer. Or that you can’t make athletes employees at Division 1 because it would also apply at Division 2 and essentially put those schools’ athletic departments out of business since there isn’t much revenue at that level in the first place. Title IX, which has provided millions of playing opportunities for women in college sports, is now used in this context as a reason why economic opportunities should be restricted.
This is, of course, the argument that has cost the NCAA millions upon millions in legal fees while racking up loss after loss in the courtroom. And it’s just a bad, outdated way to look at college sports.
Three or four decades ago, it may have seemed reasonable that the differences between big-time football and basketball schools and everyone else weren’t so big that they needed to be governed by an entirely different system.
But when you look at every aspect of how these top programs are run from the coaching salaries on down, we now know they have a lot more in common with professional sports than the water polo team on campus or the FCS school that might get paid an appearance fee to play a glorified exhibition game.
Admittedly, these aren’t easy problems to solve. But there has to be a better plan than waiting for more losses in court or hoping to get some kind of antitrust exemption through Congress.
That may require something dramatic, like universities agreeing to remove their non-revenue sports from the athletic department and making them something more akin to club sports where scholarships would be given out based on financial need and academic merit rather than pure athletic ability.
Or perhaps there’s a model where big-time college football essentially becomes a professional league where teams are affiliated with universities through licensing agreements, allowing them to collectively bargain with players and pay them a percentage of the revenue.
Maybe that’s not the answer either, but college sports needs to start putting its brainpower to use and think more boldly and progressively about how to transition away from the current model and into something more flexible and responsive to the economic and legal realities it’s facing.
In each one of these court proceedings, the unmistakable message is that the NCAA needs to do something drastically different. But it can’t if it doesn’t even try.