Pros Going Amateur: Soon, Lebron James Could Play for Your College
“They are professional athletes. Get professionally paid. It’s not going away. You can’t try to get loopholes, because they take you to court.” — Hall of Fame basketball coach Rick Pitino
Paying college athletes means you can’t put the toothpaste back in the tube.[1] Out of the tube comes this argument … in some instances, going “amateur” will be better financially than staying “pro.” To accommodate this, college sports should be a free market for all athletes — amateur and pro.[2]
That’s toothpaste for ya.
“Amateur”: What College Is Not
First, let’s kill these illusions … “amateur status” and “college eligibility.”[3] Just words, not realities. Times are changing, and “amateur” is a dead idea. As described by Syracuse chancellor Kent Syverud:
It’s been obvious the whole college sports system has been a dead man walking for three years, driven by legal developments. [emphasis added] What’s going to come out of it is the thing that hasn’t been clear. The current system can’t continue, it’s a dead man walking.
It’s a sentiment recently echoed by U.S. Senators Chris Murphy:
All the breathless attention on this weekend’s College Football Playoff selection is a reminder that college sports are anything but amateur. [emphasis added]
The same from Ohio Attorney General Dave Yost:
[T]he NCAA has evolved over time, but since recent court decisions have come down, it is becoming increasingly clear that model that worked in 1993 is not the model that will work now or is legal. It’s time to recognize that college sports has become big, big business. And it needs to be treated that way under the same kind of laws, same competition requirements that other businesses have to live by. [emphasis added]
More and more, amateurs and professionals look alike. It’s a division in name only. The reality is, college looks less “amateur” and more professional. Other than nostalgia, there’s not a good reason (or benefit)[4] for maintaining the fiction of “amateurism.”[5]
And with the fall of “amateurism” so falls “college eligibility.”[6] Name another profession — which is what college athletics have become — where skilled employees[7] automatically (without cause or fault) lose[8] their “eligibility” to work.[9] In any other industry, this would look like discrimination;[10] at the very least, it’s preventing people from earning a living wage.[11]
“Amateur” Is Just Wet Cement
“Amateurism” is a quaint idea, a throwback to the 60s when college sports were primarily about one thing … the purity of competition. But this quaint idea has never been ironclad; proponents will hold it up as sacred, but it’s never been that. As history shows, amateurism wilts when money’s involved:
The one firm rule that always governed the Olympic Games was that amateur athletes were permitted to compete. Professional athletes were not. … [But the International Olympic Committee] realized that commercial interests could turn the Olympics into a bottomless goldmine. And to bring in viewers, it was determined that an effective lure would be the presence of the greatest and most famous athletes in the world. Many of whom are professionals. … When the Dream Team of National Basketball Association players from the United States went to the Barcelona Olympics in 1992, the transformation was complete.
The death of amateurism to the benefit of professionals … it’s been done at the Olympic level. And at the college level, this death is already allowed in limited circumstance. For some professionals, college offers a loophole:
NCAA Bylaw 12.1.5 Amateur Status if Professional in Another Sport. A professional athlete in one sport may represent a member institution in a different sport. The institution may award institutional financial aid to a student athlete, provided the student-athlete is not professional in the sport in which the student-athlete will participate at the certifying institution.
So a 30-year-old athlete who played professionally as a shortstop can still compete as an “amateur” football player. All this to say …
· amateurism is “amateurism” until money is involved, and
· amateurism is “amateurism” but not always.[12]
“Amateur” for Some, Not for Others
And then there’s this:
· amateurism is “amateurism” … but not for coaches.
To further his career, Nick Saban freely moved from the Cleveland Browns to Michigan State to LSU to the Miami Dolphins to Alabama. Treating coaches differently is fundamentally unfair, something recently underscored in North Carolina attorney general Josh Stein’s “transfer” complaint against the NCAA:
[R]ules that unreasonably restrict competition between competitors, with no overriding procompetitive benefit, run headlong into this nation’s antitrust laws which are premised on the belief that market forces provide the best outcomes. …
In contrast to college athletes, students with academic or music scholarships can freely transfer institutions without facing similar restraints on their ability to practice their craft. Likewise, coaches and administrators face no comparable barriers. [emphasis added]
Applying Stein’s reasoning to professional athletes:
In contrast to “professional” athletes, “professionals in business or the arts” can freely “return to college” without facing similar restraints on their ability to practice their craft. Likewise, coaches and administrators face no comparable barriers.
By “Amateur,” We Mean “Worker”
The “un-tubable” toothpaste is building a foundation upon the “worker”:
We cannot wait for the NCAA to share its billions with the workers who create it. [emphasis added] And those workers are college athletes. — Senator Bernie Sanders
The College Athlete Right to Organize Act is a common sense next step to protect the young workers powering this industry [emphasis added] and give them the rights they deserve. — Senator Elizabeth Warren
College athletes are workers, period. [emphasis added] … College athletics are a billion dollar industry. — Senator Jamaal Bowman
Imagine you’re a 27-year-old quarterback (i.e, “worker’) who flamed out in the NFL. Or a 7th-round draft pick (i.e., “worker”) of the Yankees who failed in the minors. Professionalism didn’t pan out so you look at college’s “billion-dollar industry” and think, “As a worker, I can still contribute to a university.”[13] Now justify why these “workers” should be banned from gainful employment.[14]
The economic reality is … there is no justification. Have doubts? If so, listen to UCLA’s Chase Griffin, a two-time National NIL Athlete of the Year:
A unanimous Supreme Court, the Department of Justice Antitrust Division, and states across the country have emphatically recognized the right of college athletes to share in the economic freedoms that are the bedrock of the American Dream. At present, the United States Congress stands alone as the only governmental institution contemplating NIL legislation that will deprive over half a million college athletes the full measure of economic freedom currently enjoyed by our peers and every other American. For the past two years NIL has enabled college athletes, like me, to become small business owners, taxpayers, support the families that raised us, contribute to charities, and re-invest in the communities that we represent. [emphasis added]
A high school phenom who fails in the NBA still deserves “the full measure of economic freedom currently enjoyed by our peers and every other American.” Why should he be banned from the “American Dream” simply because he started at a higher level? Or because his professional money — salary/signing bonus — looks nominally different than college money (Name, Image, and Likeness)? There’s no justifiable reason to ban a “worker” — pro or amateur — from NIL’s (fill in the blank) [business, family,[15] charity, community] opportunities.
“Amateur”: How It Punishes in Perpetuity
As Ohio AG David Yost recently said:
The “AA” in NCAA might as well stand for “arbitrary and atrocious.” The transfer eligibility rule needlessly curtails the fundamental rights of college athletes.
His words ring true: “amateurism” — in today’s world — is arbitrary and atrocious. It needlessly curtails, as Yost puts it, “the fundamental rights” of certain workers. Of course, beyond the right to work, there are other benefits to ending amateurism. One of those is the benefit of second chances.
What if Lebron James — who chose to skip college — wanted to now compete for a National Championship? Why should he — or any other athlete — be forever banned from this second chance? Or consider the backup quarterback who’s struggling in the USFL. Maybe he’s good enough to drop down a level and — at a discount[16] — start for UCLA. With this second chance, he plays in front of a larger crowd, garners more of the spotlight, and finds himself a hero to thousands of fans.
But these second chances aren’t just about competing. With the fall of amateurism, many athletes would get the second chance to rectify a wrong.
At 17-years-old, my brother was drafted by the Toronto Blue Jays. Because of this, he gave up a scholarship to the University of Illinois. However, after five years in the minor leagues, he was out of professional baseball. At 25-years-old, my brother was still capable of competing in college. But he lost this right forever because of a decision he made in high school.
Every year, high school athletes sign professionally and give up — forever — their college eligibility. Today, there’s no justification for this “forever” punishment; in fact, as a punishment, it prevents many athletes from rectifying a bad decision … a decision that’s often swayed by money, immaturity, and short-term thinking. Ultimately, these athletes are arbitrarily punished — long term — for demonstrating (and capitalizing on) a high level of skill at an early age.[17] Removing the amateurism rule would rectify this by:
1) eliminating the “all college or no college” decision,[18]
2) offering athletes a second-chance at college, and
3) providing workers a free market for their skills.[19]
“Amateurism” Is for the Naïve
Now, I’ll defer to the idealist in the back, the one who’s been patiently holding his hand up:
Idealist: “College was created for college students. Likewise, college athletics were created for student athletes.”[20]
Stop! There are no more student athletes. From a 2021 NLRB memorandum issued by General Counsel Jennifer Abruzzo:
While Players at Academic Institutions are commonly referred to as “student-athletes,” I have chosen not to use that term in this memorandum because the term was created to deprive those individuals of workplace protections.
Abruzzo prefers “players,” the same generic term applied to professionals. Congress prefers “workers” (see above); lawyers prefer “employees.”[21] But the term “student athlete” … that has been erased from our lexicon.
Idealist: “If professionals are allowed to play, many amateur athletes will lose their roster spots.”[22]
This is true, but this is the nature of business. Like the restructurings that plague a free market, 3rd stringers will be cut, 1st and 2nd stringers will be demoted, and starters … they’ll be a mix of good professionals and great amateurs. College athletics isn’t about what’s fair. If it were, every high school athlete would make a college team, and every walk-on would earn the NIL money of a 5-star quarterback.
Idealist: “If professionals are allowed to play, many amateur athletes will lose their path to a college education.”[23]
I sympathize with this, but sadly, college sports are becoming less and less about educating the athlete. Today, they’re more and more about the money:
[C]ollege sports have evolved into a two headed monster with one head of revenue generation at the conference/school level and the other head of amateurism at the NCAA/athlete level.
The tension between the two models appears to be on the verge of breaking, with money generation as the winner.
The free-market financial relationships sanctioned by the Supreme Court in NCAA v. Board of Regents, appears be inexorably propelling college sports towards a market-driven system that rewards the highest performing conferences, schools and athletes. [emphasis added]
The path to education isn’t as attractive as the path to more revenue. If amateurism fell,[24] colleges could offer an improved product[25] … better athletes = more wins, more ticket sales, more television revenue.[26] And as the pool of athletes grew,[27] mid-majors could access more talent … the “have-nots” would suddenly have more.[28] In “a market-driven system that rewards the highest performing conferences, schools and athletes,” the path to education isn’t good business; winning is good business.
Idealist: “Colleges should make decisions that are in the best interest of their athletes.”
See above: College is a revenue generating business;[29] it’s not a “best interest” business.
See also: College athletes don’t make decisions in the best interest of their schools. Nor are they being asked to. In a free market, many are transferring from college to college, looking for the spotlight and a place to optimize their NIL money. Self-interest — for both colleges[30] and athletes — is becoming the norm.
“Amateurism” … It’s Just Nonsense
So let’s review:
· Amateurism is dead … “College sports are anything but amateur.”
· Amateurism is a billion-dollar industry … “College sports has become big, big business. And it needs to be treated that way under the same kind of laws, same competition requirements that other businesses have to live by.”
· Amateurs are “workers,” not student-athletes … “College athletes are workers, period.”
· Amateurism is fleeting … The Olympics eliminated amateurism because “commercial interests could turn the Olympics into a bottomless goldmine.”
· Amateurism is illogical … Already a “professional athlete in one sport may represent a member institution [i.e., college] in a different sport.”
· Amateurism is one-sided … “Coaches and administrators face no comparable barriers.”
· Amateurism wants a free market … i.e., “the full measure of economic freedom currently enjoyed by our peers and every other American.”
· Amateurism is “arbitrary and atrocious.” … It curtails the “the fundamental rights” of athletes who, at just 17-years-old, make a decision to sign their college life away.
· Amateurism isn’t in a university’s best interests … College sports comprise “a market-driven system that rewards the highest performing conferences, schools and athletes.”
Recently, George Will said this about “An NCAA football championship free of all that ‘amateurism’ nonsense”:
[T]he old regime’s nonsense — sentimentalism about “amateurism,” which is used to facilitate cupidity — has been replaced by rational nonsense: profit-maximizing, employing professional players for the greater glory of higher education. Warm pieties about amateurism have been jettisoned in favor of cold candor about the multibillion-dollar entertainment industry that operates in the shadow of universities.
Everything I said above, Will says in just 10 words, which is … the future for college is that of an association “employing professional players for the greater glory of higher education.”[31] If you have any doubt about this future — that a professional player might soon realize the “greater glory of higher education” — I’ll leave you with this:
Sheryl Swoopes — the first female athlete with a signature shoe, Nike’s Air Swoopes — is questioning the economics of women’s basketball as NIL potentially makes it more lucrative to play in college than the pros. [emphasis added]
“I think it’s sad when college players are making more money than a professional WNBA player, it doesn’t make sense to me,” the first-ever WNBA player to be signed said.
[1] Or consider this out-of-the tube argument: student fans and student sections now have an argument for getting paid. The students of Texas A&M’s “12th Man,” Duke’s “Cameron Crazies,” Virginia Tech’s “Cassell Guard,” Michigan State’s “Izzone” … all populated by students, all unpaid labor. As “workers,” they make money for universities by enhancing the gameday experience, driving ticket sales, helping win games, boosting the brand, and contributing to television revenue.
[2] Keep in mind, athletes and lawyers are currently contesting the NCAA’s “amateurism” model, claiming it prohibits athletes from receiving compensation for their athletic work. This creates a contradiction if, in the same argument, you exclude professionals. If you challenge “amateurism” as an unjust prohibition (i.e., it’s wrongfully used as barrier to compensation), it becomes difficult to cling to “amateurism” as a justifiable prohibition against professional athletes.
[3] According to NCAA Bylaw 12.01.1:
Only an amateur student-athlete is eligible for intercollegiate athletics participation in a particular sport.
Bylaw 12.01.2 further states:
Member institutions’ athletics programs are designed to be an integral part of the educational program. The student-athlete is considered an integral part of the student body, thus maintaining a clear line of demarcation between college athletics and professional sports. [emphasis added]
[4] The only real benefit is clinging to the nostalgia that college sports are pure, unadulterated, and somehow played for “the love of the game.”
[5] Correcting “fiction” is part the evolution in college athletics. As college sports became more business and less collegiate, the term “student athlete” was rendered a fictional description:
The term at first seems innocuous, and some college athletes themselves embrace it, proud of their ability to manage both academics and athletics. But many athletes are unaware of the term’s long history; in the decades since the 1950s it has been used to classify athletes in a way that deprives them of some of the rewards of their athletic endeavors.
With linguistic sleight of hand, the NCAA public relations machine forced the term student-athlete into common usage. As students, athletes could not be employees, and therefore, were limited in the compensation they could receive outside of their athletic aid. The term is particularly embedded in athletes’ rights issues and court cases that seek to keep athletes from receiving additional financial support from an athletics enterprise that generates billions. [emphasis added]
Expanding the argument, “amateur” (i.e., a “linguistic sleight of hand”) has been used to “classify [professional] athletes in a way” that keeps them from “receiving additional financial support from an athletics enterprise that generates billions.”
[6] Consider the oddity of this term … “college eligibility.” The term is weirdly misleading because an athlete only loses his/her “eligibility” to “compete” in college. But that athlete doesn’t lose his/her eligibility to still attend college. Thus, a professional athlete is banned from participating in college sports (and the benefit of NIL) but is not banned from enrolling in college and taking classes. In this scenario, you have two sets of student-athletes on campus … some who can participate in sports (and make money as “athletes”) and some — the ones disqualified as “athletes” — who are expressly forbidden from sharing in athletic revenue.
You also have two categories of talent on a college campus. One category — athletic talent — loses college eligibility when they work professionally. However, the other category of talent — painters, writers, actors, singers — don’t lose their college eligibility when they work professionally. For example, a student actor can work professionally during the summer, and upon returning to campus, he’s still eligible to perform in the university’s play, at the university’s theatre, and in front of the university’s ticketholders.
[7] In a 2021 NLRB memorandum, General Counsel Jennifer Abruzzo concluded that:
1) Certain players at academic institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment, and
2) Misclassifying such employees as mere “student-athletes” and leading them to believe that they are not entitled to the National Labor Relations Act’s protection has a chilling effect on Section 7 activity and is an independent violation of Section 8(a)(1) of the Act.
[8] Under current rules, “college eligibility” is lost after a certain number of years. However, the NCAA recently adopted a new rule for all Division 1 schools:
· Offer degree completion funds for up to 10 years after a college athlete’s eligibility concludes, if that college athlete was previously on full scholarship or received financial aid in a head count sport.
This creates an odd contradiction. On one hand, the NCAA tells a student that his eligibility as a player-athlete has ended. On the other hand, the NCAA tells this same student that his eligibility as a scholarship-athlete carries a 10-year extension. In this scenario, the student loses his athletic eligibility but extends his scholarship, even though the latter is directly connected to his athletic talents. It’s a tacit admission that “eligibility” can be amended and extended.
[9] Before someone tries to make the analogy, barring professional athletes isn’t the same as barring 1) undocumented workers, 2) professionals who lose their license, or 3) felons from certain professions. These instances involve cause, fault, criminality, or illegality, none of which apply to the amateur ban on professional athletes.
[10] I’m definitely not saying there’s a legal claim for discrimination. Only that it resembles discrimination at its most basic, non-statutory level … i.e., the unjust treatment of different categories of people.
[11] The term “college eligibility” is used as a limiting term; it refers to a small window of eligibility. Ex-professionals — seeking a slice of the college pie — will want “college eligibility” to mean eligibility in perpetuity (for all skilled “workers” … a term being used in the Senate). But beyond professionals, there are two more groups who’ll benefit from the economic freedoms of perpetual eligibility.
The first group includes college athletes who are good enough to play in college but not good enough for the pros. If these athletes have a long-term, marketable skill at the college level, it makes no sense to shut down their future, especially when they don’t have a marketable skill at the next level. What’s the harm in letting a good college quarterback play (and make NIL money) for 10–12 years? If he can’t find a job as a pro, why eliminate his job options as an amateur? Recently, it was demonstrated that an athlete’s value — at the college level — can easily span a decade:
Miami tight end Cam McCormick said Thursday that he would return to play for the Hurricanes in 2024 — his ninth season of college football. [emphasis added]
McCormick, who began his career at Oregon in 2016, missed significant parts of four different seasons due to injury, which along with his redshirt year and the COVID year of 2020 allowed him to petition the NCAA for an unprecedented ninth season of eligibility.
The second group includes athletes who lack a superior market at the professional level. For some, the money — and the attention — is better at the college level. Recently, the question came up: Will Iowa star Caitlin Clark have to take a pay cut if she goes to the WNBA? USA Today answered it this way:
[T]here is a widely-spread misconception existing that women’s college basketball players will not take their endorsement deals — made possible in college through the Name, Image and Likeness (NIL) law — with them when they become professionals in the WNBA.
Maybe this is true for Caitlin Clark, but what about a member of the University of Oklahoma’s (OU) Softball team … one of the most dominant dynasties in sports history. For an OU softball player, which makes more financial sense: playing at OU (which plays on national television and in front of sellout crowds) or playing in the Women’s Professional Fastpitch (WPF) league? I don’t want to degrade the talented athletes of the WPF, but in the world of softball, the biggest stage is OU Softball (and with it comes the potential for big NIL money). The same might be said of the college athletes who play volleyball at Texas or who wrestle at Penn State.
[12] Another longstanding exception was carved out for Olympic medal winners:
Since 2001, NCAA by-laws have permitted incoming or current student-athletes to benefit from the USOC’s Operation Gold program, which gives bonuses to athletes for top finishes at Olympic or world championship events, without compromising their eligibility. Athletes earn $25,000 for gold, $15,000 for silver, $10,000 for bronze and receive other yearly stipends as determined by the USOC and the individual sports’ federation.
[13] In a way, “college eligibility” echoes Major League Baseball’s now defunct reserve clause:
[In] the early days of Major League Baseball, the reserve clause was used to keep players tied to their teams for their entire careers. This meant that players had little bargaining power and were often paid very little compared to their value. It wasn’t until the 1970s that the reserve clause was challenged and eventually abolished, leading to the rise of free agency.
Similar to the reserve clause, “college eligibility” keeps players tied to professional leagues by excluding them from college athletics.
[14] As a justification, one might argue the dangers of injury, that college athletes will be put in danger if they play with older, professional athletes. This falls apart when you consider: 1) many college athletes are separated from professional rookies by 1 or 2 years; 2) the Olympics already pits young amateurs against older professionals, and 3) many high school athletes move into the professional ranks at 17 or 18 years old. In the latter case, we already have young athletes competing head-to-head with older, more mature athletes.
In fact, at my alma matter Oklahoma State University (OSU), Brandon Weeden returned to OSU to play college football after playing professional baseball for several years. At the end of his college career, he was a 28-year-old playing football with 18-year-olds.
[15] Ex-professionals might use their college riches to “support” a family OR buy their father a home … like Deion Sanders’ sons did:
Coach Prime received the gift of a lifetime in the Centennial State. An immaculate house outside of Boulder, complete with breathtaking views of the Flatirons that was given to him by his three sons.
If you’re an ex-professional (who’s still in his prime) AND you want to buy your father a house, which is the better path to take: the 8–5 path or the Shedeur Sanders path:
Shedeur Sanders is the highest-ranked college football player in On3’s NIL deals ranking and the second collegiate athlete. His NIL deals are currently valued at $4 million, as per On3, with his highly publicized debut Colorado season being a great opportunity for the player.
[16] This is an important point that’s deserving of more than a footnote. According to Todd Berry, retired executive director of the American Football Coaches Association, the going rate for a good college quarter back is $2 million (Nebraska Coach Matt Rhule echoed this when he said “Make no mistake: a good quarterback in the portal costs $1 million to $1.5 million to $2 million right now.”).
In terms of the “going rate,” what would happen if professionals could play college sports? To the benefit of small and/or underfunded programs, it would spawn more competitive pricing. For example, if a mid-major couldn’t afford the services of a $1 million college quarterback, maybe an older, ex-professional offers (i.e., discounts) his services for half the price. This would then cause some college athletes to adjust their pricing downward because of competition (i.e., economic theory demonstrates that when businesses have to compete for customers, it leads to lower prices). Of course, top-tier college athletes would still be able to demand $1 million dollars, but there’d be fewer spots — i.e., spots taken by top-tier professionals — at this million-dollar level.
[17] Consider the cruelty of this: a talented high school student — if he signs to play professionally — is barred from college sports forever simply because his talent peaked early (compared to the general population). Conversely, a late bloomer — one who develops in college — can still turn pro (after reaping the benefits of NIL money). In the former case, a 17-year-old is punished for being too good too early. In the latter case, a 24-year-old (whose talent peaks later) gets to double dip … he benefits from college’s billion-dollar industry AND (as a professional) he’s economically rewarded for getting better over time.
[18] It’s bizarre that a 17-year-old can choose professional sports, choose wrongly, and be forever punished for it. But another 17-year-old can choose college sports, choose a team wrongly, and have the freedom to rectify that decision via transfer. Consider this argument against restricted transfers:
[T]he Transfer Eligibility Rule harms college athletes by discouraging them from transferring to a different institution that may benefit their academic, mental, and athletic well-being. Because of the Transfer Eligibility Rule, college athletes are denied the freedom of choice among Division I schools once they have competed on behalf of a given school. — Complaint: State of Ohio, et al, vs. NCAA, Case №1:23-CV-00100-JPB (N.D. W. Va.)
When a first choice is wrong, college athletes — many of them teenagers — are afforded a second chance that “may benefit their academic, mental, and athletic well-being.” This can only be done if their “freedom of choice” is unrestricted. But for some teenagers — those who mistakenly sign a pro contract — this freedom is forever forfeited even if a second chance benefits “their academic, mental, and athletic well-being.”
[19] Some will say it’s unfair to give these athletes a second-chance (i.e., “They had their shot”) because it takes away a position/scholarship from someone else. But college competition is about big payouts, smart business, and media revenue. In a billion-dollar industry built on wins and losses, fairness is a recipe for failure. In a world of “workers,” businesses don’t hire to be fair; they hire to compete. Universities don’t field teams to be fair; they field teams to win, to market themselves, and to rake in TV/ticket revenue.
Moreover, if fairness truly was important, 1) every college athlete would make the same NIL money, 2) every college (regardless of size or resources) would offer the same NIL opportunities, and 3) every player (from the 1st string to the 4th string) would have equal opportunity to showcase their NIL talents.
[20] The idealist wants to justify “amateur” sports on the historical description of “amateurism,” ignoring today’s reality of big business. In a nutshell, he says we should keep professionals out of college sports simply because we label these sports “amateur” (even if there’s nothing amateur about them). But Supreme Court Justice Brett Kavanaugh has noted that “labels” alone make for a flimsy argument:
The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that “customers prefer” to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a “love of the law.” Hospitals cannot agree to cap nurses’ income in order to create a “purer” form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a “tradition” of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a “spirit of amateurism” in Hollywood.
[21] A look at pending litigation:
Some college athletes hope to be classified as FLSA employees in the pending case Johnson v. NCAA, in which a group of college athletes claims they are employees of the NCAA and seek payment for hours worked in relation to their athletic activities, commensurate with traditional work-study students. A ruling in the students’ favor would likely trigger even more questions, including inquiries into Title VII, Title IX, tax implications, and even the future of the NCAA.
However, a different path to employee status may be forged by the NLRB, which filed a complaint in May 2023 against the NCAA, Pac-12 and USC for unfair labor practices, claiming they are joint employers of various college athletes under the National Labor Relations Act. Another notable effort for college athletes’ recognition as employees arose from Dartmouth College, whose men’s basketball team filed a petition for recognition as a labor union in September 2023.
These efforts represent a growing movement to deem college athlete as employees, [emphasis added] who could then look to form unions, negotiate collective bargaining agreements with their schools, conferences, and the NCAA, or sign employment contracts with their schools to determine compensation terms.
[22] By excluding competitors or preventing new entry, this argument (i.e., protecting market share) incorporates an anticompetitive idea, one that is likely to reduce competition, lead to higher prices, and reduce quality or levels of service. Consider this language from the Supreme Court:
The NCAA accepts that its members collectively enjoy monopoly power in the market for student-athlete services, such that its restraints can (and in fact do) harm competition. Unlike customers who would look elsewhere when a small van company raises its prices above market levels, the district court found (and the NCAA does not here contest) that student-athletes have nowhere else to sell their labor. [emphasis added]
To argue that only amateurs deserve roster spots in the big business of sports is to argue that amateurs “collectively enjoy monopoly power in the market for student-athlete services.” And when a professional is cut from a pro team, this turns the Supreme Court’s second observation on its head … i.e., now, it’s the professional who has “nowhere else to sell their labor.”
The rebuttal might be that college sports — an “amateur league” — can’t be anticompetitive (by excluding pros) because the competition is defined as “amateurs.” But the point made over and over again is this: college is no longer an amateur league, a sentiment echoed by the Supreme Court:
Firms deserve substantial latitude to fashion agreements that serve legitimate business interests — agreements that may include efforts aimed at introducing a new product into the marketplace. But none of that means a party can relabel a restraint as a product feature [emphasis added] and declare it “immune from §1 scrutiny.” …
While the NCAA asks us to defer to its conception of amateurism, the district court found that the NCAA had not adopted any consistent definition. Instead, the court found, the NCAA’s rules and restrictions on compensation have shifted markedly over time. [emphasis added] The court found, too, that the NCAA adopted these restrictions without any reference to “considerations of consumer demand” and that some were “not necessary to preserve consumer demand.” None of this is product redesign; it is a straightforward application of the rule of reason.
[23] Many students have some athletic talent, but many never receive an athletic scholarship … their path to college is thwarted because of this. Likewise, many talented students — talented volunteers, talented musicians, talented speakers, talented actors — don’t have the scholarship option that many athletes do. Their path to college is thwarted because of this. All this to say (and it pains me to say it) … the path to college isn’t a right, and talent (including athletic talent) has never guaranteed such a right.
[24] Consider the strange directionality of amateur status. Amateurs have the one-way freedom to move up a class (i.e., turn pro) or remain at the college level (at least through their eligibility). But the reverse doesn’t hold true. Thus, from amateur to pro, there’s a free and unrestricted market; it’s based on supply and demand, with little government control. But the reverse doesn’t hold true. From pro to amateur, you have more of a monopoly … the NCAA holds complete control over college sports so that others (i.e, non-amateur athletes) have no share.
[25] An improved product — to the benefit of consumers and competition — is one of the arguments currently being made against the NCAA’s Transfer Eligibility Rule:
The Transfer Eligibility Rule has downstream effects for consumers who attend NCAA athletic events in-person and for consumers who watch the events on television or listen on the radio. When the Transfer Eligibility Rule prevents college athletes from competing at their new institution after transferring, the Rule can decrease fan interest in a team’s season by making popular players ineligible for competition and decreasing a team’s competitiveness on gameday.
Furthermore, the Transfer Eligibility Rule is a barrier to increased parity in college athletics that would create a better product for consumers. … The Transfer Eligibility Rule harms consumers of college athletics by making teams less competitive while affected college athletes are ineligible for an entire academic year and by preventing increased parity in college athletics that would create a more compelling product for consumers. — Complaint: State of Ohio, et al, vs. NCAA, Case №1:23-CV-00100-JPB (N.D. W. Va.)
[26] As reported by ESPN:
A new market force has emerged as potentially interested in the future of college sports. … [R]epresentatives from private equity and other types of outside financial entities have emerged as interested in the chaos of college sports. … Private equity officials have found profitable avenues in everything from professional sports to the WWE.
Private equity firms exist to make money, and once they’re involved, making NCAA sports more profitable might include lifting the ban on professional athletes. As sports journalist Ron Rapoport said regarding the once “amateur” Olympics:
The pros are there for a reason. People will tune in to watch athletes they know. The pro athletes are pre-sold to the public, which means increased viewership.
[27] The argument might be made that this would phase out college-aged athletes. Of course, the easy rebuttal is that success isn’t guaranteed in a “free market,” which is what college athletics is becoming. With unrestricted transfers, loyal, veteran players are easily cast aside by an influx of new/transfer talent.
There’s also the fact that many high school athletes are crowded out by better talent; i.e., playing college sports isn’t a right by any means. Regardless, what probably happens is a stasis of some kind … where the best amateur athletes play alongside good (but not great) ex-professionals.
[28] One can imagine a mid-major, NIL collective putting together an attractive offer for a position they desperately need. In NCAA basketball, where parity is more obvious, a mid-major might need a point guard to make an NCAA run. However, if one isn’t available in the transfer market, the professional market might provide this desired (and talented) player, one who can help them compete with bigger, richer schools.
A somewhat similar observation has been laid out in State of Ohio, et al, vs. NCAA, Case №1:23-CV-00100-JPB (N.D. W. Va.) (complaint):
By discouraging transfers through the academic year in residence requirement, the Transfer Eligibility Rule benefits larger and historically successful sports programs by allowing them to retain talented players on their depth charts who may otherwise wish to transfer and may be better served by transferring to another institution. Similarly, programs outside of the traditional upper echelon of college athletics would benefit from an environment without the Transfer Eligibility Rule, as it would allow them to enroll such transferring college athletes and have them compete in their athletics program. This, in turn, would lead to more parity within college athletics. [emphasis added]
[29] Conversely, colleges aren’t in the business of losing money. It was recently reported that the University of Colorado Athletic Department recorded a deficit of nearly $9.9 million for the 2023 fiscal year. However, things would have been worse if not for an ex-professional athlete on Colorado’s payroll … Deion Sanders:
The department has an operating budget of roughly $134 million for FY24, boosted by more than $37 million in football ticket sales from last season — a $21 million jump over 2022 — as fans flocked to Folsom Field to see new head coach Deion Sanders’ squad. [emphasis added]
Sanders’ arrival at Colorado was the catalyst for a $21 million jump in ticket sales. While Sanders is a coach, not player, this demonstrates the power of celebrity. With the amateur rule repealed, revenue-generating universities could tap into this celebrity by 1) signing famous and/or semi-famous professionals, 2) bringing back beloved alumni who stalled in the pros, or 3) retaining college stars and extending their eligibility beyond 4 years.
[30] Self-interest (vs. best interest) is the thing that’s driving conference realignment:
The human cost of conference realignment is illuminating beyond the dollars because it shows the disregard for individual student-athletes, coaches, administrators, support staff, faculty, parents, and fans underneath the veneer of more dollars and the promise of better experiences for everyone down the road.
That students so profoundly affected by these decisions had no power in the process epitomizes the concern for institutions over individuals that has played out in conference realignment. In some ways, student-athletes have more voice than ever, yet, for this kind of decision made at the highest levels of their universities, they had no say-so.
[31] Of course, any professional employed for the “greater glory of higher education” would need to be enrolled in classes and pursuing a degree. “Workers” in this system would still agree to be “students,” not guns for hire. This would 1) maintain the last bit of division between professional and college sports and 2) ensure a level playing field (many younger athletes would still play with the ultimate goal of earning a degree).
However, for some, college sports are much more lucrative than earning a degree. Acknowledging this, there’s validity to the argument that class attendance shouldn’t be required because it interferes with income-earning activities. Put another way, going to class makes it difficult to pursue a career:
Former Notre Dame quarterback Brady Quinn wonders if players will even have time for class these days. He recently told ESPN’s Dan Patrick, “ … between practice and then NIL responsibilities for marketing (and) so forth; where does school even come into factor? Like, where does it come into play?” He said a player would be more motivated to skip a class to fulfill a well-paying marketing appearance.
