Nearly 25 years ago, I was one of the first writers in the country to propose that college athletes should be paid. At the time, the response was outright skepticism. Author Gregg Easterbrook, for example, wrote that paying “formal salaries for college athletes…falls into the category of Never Happen.”
Fast forward to today.
In February 2014, a federal court ruled in O’Bannon v. NCAA that college athletes could proceed to trial on their claim that they were entitled to a share of the revenue from game broadcasts or from the use of players’ names and faces in video games.
Then in March, a regional administrator for the National Labor Relations Board (NLRB) ruled that Northwestern University’s scholarship football players are employees and therefore entitled to organize and bargain collectively.
Of course, paychecks for college athletes won’t be coming tomorrow. The Northwestern case has many hurdles ahead: affirmation by the full NLRB, review by an appeals court, a positive vote by the players. And it applies only to scholarship athletes at private colleges. The O’Bannon ruling merely allows that case to go forward. It will be at least months, perhaps years, before a verdict is rendered and court relief could be ordered.
What’s changed? Certainly not the basic relationship between colleges and their revenue-sport athletes. Colleges still earn millions in tickets, TV rights and T-shirt sales while the players—whose performances are, after all, the colleges’ stock in trade—get paid in-kind with tuition, dorm rooms and meal plans.
So the exploitation abides. But the wind has shifted. The NLRB and federal court rulings, though preliminary, are weathervanes. So is the backing for paying players coming from sports commentators like ESPN’s Michael Wilbon and Fox Sports’ Jason Whitlock, as well as from other influencers such as the New York Times’ Joe Nocera and the Atlantic’s Taylor Branch.
How change could come
So change is coming. The question now is how it will come. Will the NCAA and its colleges react to these early defeats by digging in and litigating to the bitter end? Or will it embrace change and try to make the best of it? Will it change, or be changed?
History provides two intriguing scenarios for how institutions under legal assault can respond, and two kinds of outcomes.
The early school desegregation cases that culminated in Brown v. Board of Education provided ample warning to the South that Jim Crow education’s days were numbered. But instead of managing desegregation on terms and at a pace that could have preserved traditionally local and state control over desegregated southern public schools, the South dug in and scorched its earth. Its “massive resistance” to desegregation led not to victory but to schools under the control of federal courts and federal troops, and to a divided, isolated and defeated South.
AT&T read the portents more carefully when anti-trust litigation threatened its control of telephone service. Long before the litigation reached a trial-court verdict, much less a Supreme Court decision, AT&T proposed a consent decree. Rather than risk unpredictable court-ordered dismemberment, it gave up its heavily-regulated and therefore less profitable local service, but kept the emerging long-distance and data transmission markets.
What change could mean
That’s the choice that faces the NCAA and college sports today: Ignore the straws in the wind and fight to the last appeal. Or do the right thing. Pay student athletes what they deserve and what the market will bear. And instead of leaving the structure and administration of college sports to judges or NLRB members, reorganize itself around pay-for-play.
What might that look like? Maybe something like the outcome of the AT&T litigation, with NCAA keeping the most profitable parts of the business and leaving the rest to their own devices. The schools that could afford the best players, mostly large state universities, could compete in their own play-for-pay conferences, stage their own bowl games and post-season basketball tournaments and collect their own lucrative TV rights.
And the other schools, the ones that couldn’t afford to compete for the best players? They’d have the satisfaction of knowing that they had stopped exploiting their student-athletes. But the cost of player salaries might eat up the current difference between revenue and expenses—the money colleges now use to pay for non-revenue sports. And schools that dropped non-revenue sports could easily find themselves in non-compliance with Title IX, which requires equitable treatment of men’s and women’s sports. They might be forced to stop giving any sports scholarships in order to both meet their budgets and comply with the law.
In one way, not a bad outcome: Under what definition of higher education should a college like Northwestern be sponsoring a $30 million football program that can break even only by forcing young student-players—but not adult coaches and administrators—to work for nothing?
But for the thousands who have gotten a college education thanks to an athletic scholarship, for the millions of students for whom basketball and football games are a respite of enjoyment in a week devoted to intellectual pursuits, and for the tens of millions of alumni for whom their alma maters’ teams are a powerful link to a good time in their lives, the consequences of pay-for-play college sports could be the price of doing the right thing.
Louis Barbash is a writer based in Washington, D.C. His article on paying college athletes, first published in the Washington Monthly, helped ignite a nearly quarter-century-old debate over this issue. He blogs at www.connecting-the-dots.net.