My student loan also endured, for just a decade, because my education — and being part of a team — provided some of the skills I needed to become a modestly paid journalist. That seemed like a fair deal.
But for today’s student-athletes, the definition of a fair deal might change if the National Collegiate Athletic Association (NCAA) loses a case now jogging its way toward the Supreme Court by way of the U.S. Court of Appeals for the 3rd Circuit. Although the appeals court will settle a technical point, the larger issue in Johnson v. NCAA is whether student-athletes should get hourly pay for their labor, just like a work-study student who clerks at the library.
It’s true that if you play football for Penn State or Alabama or UCLA in the Power Five conferences, you get compensated in the form of one of the 85 full-ride football scholarships each school can dole out, worth some $100,000 apiece — never mind that only 11 of those guys can be in any one play. Depending on your school, you are also entitled to things such as laptops and other help, including academic performance bonuses. And if you’re a stud athlete, you can earn money off your name, image and likeness (NIL), thanks to state legislatures that sacked NCAA regulations and passed laws allowing the practice, forcing the NCAA to make NILs national. Many athletes have benefited, despite some alleged abuses, such as recruiters using NIL deals as bait.
But if you are a middling middle linebacker at Not Quite the Ohio State U and need to buy toothpaste or a burger and don’t have the funds, the NCAA still says, “Too bad. Ask Mom and Dad.” Meanwhile, some of your classmates are working in the bookstore or at the dining service for beer money. Why shouldn’t you be compensated like the hot-dog sellers in the stadium where you perform?
College administrators argue that if even more dollars shift to revenue-generating athletes in football and basketball from revenue-consuming athletes in soccer, track and especially women’s sports, something will have to give to balance the books. “If colleges and universities are forced to pay their student-athletes, it is inevitable that many schools will simply eliminate athletic teams, with nonrevenue sports teams the most likely to be on the chopping block,” warned an amicus brief filed in support of the NCAA by the American Council on Education and a dozen other higher education organizations. Or, as a friend emailed: “There goes another wrestling team.”
Johnson — the name of the lead plaintiff, a former Villanova football player — could simply make the richest conferences richer. “You wonder if there are other ways to deal with the issue and consequences,” says Michael Rueda, U.S. head of sports and entertainment at Withers Bergman, a prominent sports law firm. Rueda, who is not involved in the case, is a former athlete at the University of Connecticut, which offers outstanding facilities as well as an athletic department equipped to administer the legal issues around NILs. He notes, though, that the University of New Haven, not far away, can’t match UConn in facilities and would probably not have the funding to pay student-athletes.
The NCAA takes the position that student-athletes shouldn’t be paid minimum wage for the hours they spend on the field because playing sports has long been part of the educational experience, so they aren’t covered by the Fair Labor Standards Act. In the NCAA’s view, sports teams are more like the glee club, the marching band or other student groups. This comes just two years after the Supreme Court pitched a 9-0 shutout against the NCAA in a case regarding compensation for college athletes, ruling that the organization can’t limit education-related benefits.
The NCAA is citing case law, specifically a case called Vanskike v. Peters, as an example of an exempted class of workers. That exemption is contained in the 13th Amendment, the one that outlawed slavery, with the exception of prison labor. The condensed version of the NCAA’s argument is thus: College athletes are like prison laborers.
As a matter of case law, this may be proper and logical legal practice. But it would have to be three levels less awful to even arrive at tone deaf. “Comparing college athletes to unpaid prison labor is not a legitimate or moral position,” said the NFL Players Association and the Rev. Al Sharpton in a statement released at a conference for sports lawyers earlier this month.
Nevertheless, a three-judge panel of the 3rd Circuit will soon decide whether it’s a constitutionally correct position. The NCAA has asked the appellate court to toss an earlier district court decision rejecting the association’s motion for dismissal. Whatever the court decides, it won’t necessarily end things. The NCAA has more options in its playbook. One of them is to get legislative help from Congress to preserve the student-athlete exemption. That’s one reason former Massachusetts governor Charlie Baker, a Republican, was hired as NCAA president.
Come fall, many of the nation’s more than 520,000 college athletes will be taking the field again. Some 200,000 of them will get full or partial scholarships, earned with their talent and years of practicing their sport. But many of today’s athletes could do with an actual job, or at least the opportunity for one, on the playing field. Schools with enough money can pay, helping them attract top athletes; others will do what they’ve always been doing, recruiting athletes who are willing to pay to play, as I was, just for the joy of sport — and then the joy of lying about how good we once were as we get older.
Even as they seek to preserve the status quo, conferences such as the SEC know they can reach into their ever-deeper pockets. After all, the top 10 highest-paid college football coaches are taking in a total of about $100 million annually. The Big Ten alone will earn an average of at least $1 billion a year for broadcast television rights. The NCAA annually pockets more than $1 billion. There’s money around — it’s just a matter of who gets some.
Perhaps the rich can start a fund that might help a struggling non-scholarship swimmer earn a few bucks to keep her head above water.
