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It Is Time To Pay Our College Athletes

It Is Time To Pay Our College Athletes

With college athletics as we know them on hold for the time being, the pressure may have eased ever so slightly on the NCAA to come up with a solution to the long-simmering issue of college-athlete compensation.

Despite NCAA President Mark Emmert’s adamant insistence in recent Senate testimony that he will never endorse any model of performance-based compensation that effectively turns college athletes into university employees, the writing on the wall points to some kind of outcome that loosens rules to allow student-athletes to monetize their labors, most likely (at least initially) through name, image, likeness (NIL) agreements. For our money, that progress cannot come soon enough.

What will a system of the collegiate athlete pay look like? We do not know, but we have seen some interesting ideas floating in the internet ether. Here are a few that stood out.

Name/Image/Likeness Revenues

College sports powerhouses make millions selling merchandise that capitalizes on the names, images, and likenesses of athletes. They sell jerseys with athletes’ names and numbers, use athletes’ images in a host of promotional and capital development materials, and offer their players up for television and radio spots.

Three state legislatures have already passed laws entitling athletes to profit from the use of their names, images, and likenesses, and many more have bills pending. These legislative efforts spurred the NCAA to convene a working group to study giving athletes permission to profit from NIL rights, including, by benefiting from their social media popularity, selling autographs and making local guest appearances. Recently, the NCAA expressed openness to allowing some form of NIL benefits in subsequent rule changes, restricted to third-party agreements with athletes (as opposed to any contracts or compensation delivered to, from, or on behalf of colleges and universities).

One potentially sensible spin on giving student-athletes the right to receive NIL revenue appeared last year in a New York Times opinion piece written by a University of Colorado professor. Dr. Roger Pielke Jr. proposed a system of revenue-sharing akin to that which already exists for allocating revenues from patents obtained through federally funded research.

For instance, the University of Colorado splits revenues from patents among researchers and the university. The same basic system, according to Dr. Pielke, could apply to intellectual property rights in student-athlete NIL, and would in theory align athlete and university interests without treating athletes as compensated employees.

Universal Stipends for Student-Athletes

In a New York Magazine article, Jonathan Chait reviewed several potential means of “paying” student-athletes. Universal stipends for all college athletes hold some appeal because a stipend treats all athletes equally, regardless of gender, performance, or whether the sport to which they dedicate their lives happens to bring in revenue for the university. This solution could avoid the potential objections and legal tangles that would undoubtedly arise over (mostly) male athletes in (mostly) two sports—football and basketball—receiving outsized NIL  benefits as compared to other athletes who work no less hard but still spend their athletic careers in relative obscurity.

Guaranteed Scholarships

The NCAA’s hypocrisy regarding student-athlete pay comes into stark focus when one considers the essentially transactional, pay-for-performance nature of athletic scholarships. On one hand, the NCAA stridently objects to compensating athletes for their athletic performance. On the other hand, the NCAA oversees a system that uses scholarships—which are a transfer of value from schools to players in exchange for their athletic talent and labor—as currency that a university can take away from an athlete for a wide variety of reasons over which the athlete has little to no control.

A young collegiate athlete should not pay twice for an on-field injury, for instance, by losing both a promising professional athletic career and the academic “compensation” for which the athlete sacrificed his or her body. Nor should an athlete ever lose a scholarship because of a coaching change that leaves the athlete on the outside looking in because of a new playing scheme or recruiting focus. If the NCAA does not want athletes to view their college playing careers as market-driven propositions, then it should stop letting universities treat scholarships as a means of employment by proxy.

The Well-Known “Salary Cap”/Collective Bargaining Model

Business and sports columnist Joe Nocera floated an idea for paying student-athletes in 2016 premised on the well-known “salary cap” principle, echoed in Chait’s 2018 NYMag piece. In essence, a school would have a fixed amount of money allocated to a particular program or to all of its programs that it could disperse subject to minimum “salaries” negotiated between schools and a labor organization representing the interests of all student-athletes. In short, a system just like professional sports.

This solution could give schools flexibility to reward star athletes, while ensuring that no players’ contributions go completely unrewarded, and this model would have the added benefit of normalizing two sports cultures—amateur and pro—that currently operate on irreconcilably different wavelengths.

Of course, that normalization might highlight the downside of this approach. To some extent, college sports have a passionate following because they do not operate like the pros. Plus this change would come with all the practical and legal difficulties that mar professional sports, in which labor and management have an at-best tenuous and defensive relationship.

Wither the NCAA? Time Will Tell.

By no means are these the only potential ways of compensating student-athletes. They do, however, have the potential to work within the current realities of college sports, and most people would find them more sensible than, say, a market-based free-for-all.

Which direction will the NCAA choose? Time will tell (perhaps a long time, considering that even before the COVID-19 pandemic hit, the NCAA had promised a recommendation to its Board of Governors in early 2021).

For now, with potential rule changes in the works that may permit NIL benefits to athletes, the NCAA seems hell-bent on resisting direct cash payments to student-athletes, never mind the obvious hypocrisy of that position compared to the current state of affairs. We suspect any resolution of the student-athlete pay controversy is certain to include elements of NIL rights/revenues and enhanced scholarship guarantees.

Whatever the outcome, we hope for a significant and cash rich improvement over the current system, which leaves student-athletes at the very short end of the stick in every which way. Young student-athletes deserve to reap far more of the benefits of their extraordinary labors than the NCAA currently allows.

DarrasLaw is Americas' most honored and decorated disability litigation firm in the country. Mr. Darras has seen more, evaluated more, litigated more, and resolved more individual and group long term disability and long-term care cases than any other lawyer in the United States.

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