The Tipping Point: As ‘Avalanche’ Hits NCAA, Change Is Inevitable in the Paying Players Debate
Collegiate sports seem healthy, vibrant, and profitable with the expansion of the College Football Playoffs, the $2.4 billion annual rights to the NCAA men’s basketball tournament, and the most marketable player in women’s basketball history, Iowa’s Caitlin Clark, bringing her sport to a previously unheard-of level of television attention. All everyone save the participants are subject to that.
Legal experts and college administrators alike are beginning to wonder if athletes need to split the postseason earnings. Athlete rights and employment status have also been discussed, and both will probably be decided in federal court.
Charlie Baker, the president of the NCAA, stated briefly prior to Sunday’s women’s championship game that he wants “to make some changes to how support for student-athletes works in Division I.”
“We’ve done a number of things that are ready to deal with that, but I’m not going to get ahead of the membership on that sort of thing,” Baker said. “I’m sure it’s a conversation we’ll be having.”
What is the membership’s stance on paying players, though? Based on a recent panel debate at the University of Iowa, there is no shortage of legal professors and specialists. The questions are limitless, with lawsuits threatening to demolish the present amateur model and the possibility of a college football super league looming in the event that it does. But officials concur that change is rapidly approaching.
“The avalanche has officially hit the NCAA,” said Dan Matheson, Iowa’s director of sport and recreation management program and a former NCAA associate director of enforcement.
The NCAA is facing an increasing number of legal challenges following the U.S. Supreme Court’s 9-0 Alston decision in 2021, which permitted players to get payment for name, image, and likeness (NIL). This year, a regional director of the National Labor Relations Board declared that the men’s basketball players at Dartmouth are workers. The National College Players Association views USC athletes as employees of the institution, the Pac-12, and the NCAA, and has filed a complaint with the NLRB. Testimony is still being taken. The NCAA and its members may also have to pay more than $5 billion in legal fees as a result of a class-action antitrust case pertaining to former NIL privileges.
Since athletes are permitted to make money off of their NIL, employment represents the final stage before the distinction between amateur and professional status becomes hazy. Because there is disagreement over the limits, most experts find it to be the most challenging to manage. Is it all of the athletes or simply those from sports that bring in money? How does it relate to Title IX? What will each athlete be paid? Will sports without a profit survive?
Looking forward to a riveting panel discussion AND 2.0 CLE hours for all you lawyers in the area! There’s a livestream option here: https://t.co/6iM16S9F7y pic.twitter.com/TZSgHoCUga
— Dan Matheson (@DanMatheson) March 27, 2024
A professor of sports management at Pepperdine University who also serves as the school’s NCAA faculty athletics representative, Alicia Jessop, has asked that the NCAA change its position and acknowledge that athletes are employees. Jessop, an attorney in private practice and member of the NCAA Division I men’s basketball oversight committee, contended that resistance and discussion of collateral damage amount to “fear-mongering.”
“The NCAA continues to unsuccessfully and to the tune of millions of dollars in lobbying fees try to persuade Congress to grant it antitrust immunity,” Jessop said. “The likelihood of Congress passing such bills is as good as Caitlin Clark not being the No. 1 overall WNBA draft pick.”
Husch Blackwell law partner Jason Montgomery, a former NCAA lead investigator, disagreed.
“It’s clear that the NCAA is on the worst losing streak in sports since the Bills’ four Super Bowl losses. They are terrible at litigating,” he said. “But current and well-established law in this country says that college athletes are not employees. The Department of Labor says they’re not employees. No federal court has ever said they’re an employee.”
Universities fear that changes to employee status and pay might force athletic departments into bankruptcy. Paying athletes might compel some departments to do away with a number of non-revenue sports, which are essential to Olympic teams. According to Libby Harmon, an attorney with Nevius Legal, a former lead NCAA investigator for ten years and the compliance director at Michigan, 66% of the 626 athletes competing for Team USA in the 2020–21 Olympics were current or past athletes from 171 different universities.
Any attempt to reduce Olympic sports is an excuse, according to Jessop. She referenced data from USA Today, which showed that most Division I coaches had an average pay boost of 15.3 percent in 2021 (after the pandemic destroyed many departments’ finances), in addition to skyrocketing incomes and relatively little increases in scholarships. According to data obtained by The Athletic, Ohio State athletics paid $23.8 million for athletic scholarships during the 2023 fiscal year, but more than $90.7 million went into the salaries of coaches and personnel. When discussing Texas A&M’s $75 million acquisition of Jimbo Fisher, the football coach, Harmon remarked, “That could fund Division I sports departments three times over.”
“Don’t buy that there is no money in the system,” Jessop said. “This will require the reallocation of funds. Top college coaches will see pay reductions, strength trainers will no longer earn $1 million per year.”
Even yet, it would be unrealistic to expect athletic departments to stop funding men’s basketball and football, which are the only two sports that bring in money for the majority of big league schools. Montgomery contended that altering the system to incorporate employee status may completely collapse it. Athletes have had access to full-ride scholarships up to the cost of college, around $6,000 in annual educational prizes, and NIL money-making options for the past three years.
“The popularity of college sports is at an all-time high,” Montgomery said. “The popularity of television in college sports is at an all-time high. Women’s sports are at an all-time high. And NCAA membership schools in the system produce the most Olympic athletes. So things are going really good in college sports. Let’s change everything. That makes very little business sense and it makes very little practical sense.”
In addition, if athletes are considered employees, programs could hire and fire them based strictly on performance.
“If student-athletes become employees, what does that relationship look like?” asked Josh Lens, an Arkansas sports and recreation professor, who formerly worked in Baylor’s compliance office. “I think it becomes more of an arm’s length relationship between the athletics department and coaches and their athletes, and it resembles more of a professional mode.
“There are great coaches out there and great people out there who truly care about their athletes; that doesn’t necessarily go away. But I think the dynamic changes if an athlete knows that they can have their scholarship taken away.”
The future
What then transpires after a decade or five? Even among experts who favor maintaining the current system, most predict changes will occur. But it is still debatable how extreme.
“This domino is going to fall. It’s not if, it’s when,” Jessop said. “There’s going to be widespread employees at some colleges.”
“I think it’s either going to be some employment model or some other revenue-sharing model. Either way, athletes are going to be compensated outright in the next five years,” Harmon said. “What that looks like remains to be seen.”
“I vehemently disagree that we should change our successful model that is the envy of the world to go to an employment-based model,” Montgomery said. “We can come up with different distributions, and there are areas certainly that the collegiate model needs to improve in. But I think it’s still going to be litigated in the next five years.”
Some believe a school or a conference will direct revenue toward athletes. Lens said he knows plenty of athletic administrators who want to bargain with their athletes right now.
“The NCAA might try to kick them out,” Lens said, “but somebody is going to take a very progressive step and do that on their own.”
The majority of athletic departments are getting ready for the next move and are eager for this to end as soon as feasible. Athletic director of Iowa Beth Goetz stated, “We are always talking about what the future of college athletics would look like,” in an interview with The Athletic. Talk of a super football league, which The Athletic revealed last week, is also being discussed. Under this scenario, one organization would oversee college football through collective bargaining and a union. That would relieve the NCAA of its ongoing antitrust concerns.
“We all want what’s best for college athletics and college sports and if you’re really trying to figure that out, putting limits on ideas that come out, I don’t know if that always makes sense,” Goetz said about the football super league. “Whether or not this is something that we really should pursue, I don’t know yet. But there might be some pieces of that that actually lead to a solution. … I think those are good conversation starters.”
(Photo: Steph Chambers / Getty Images)