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Yesterday at the New Orleans Saints' Mercedes Benz Superdome, LSU and Clemson battled for the NCAA championship football game in front of a capacity crowd. For years to come, Joe Burrow will be celebrated for a tremendous performance on the field and revered in the annals of LSU and college football history. Burrow will most likely go on to be drafted highly in the forthcoming NFL draft—an NCAA success story. But many who played well last night will never have a pro career. Increasingly, we die-hard college football fans are concerned with what happens after the stadium empties, turning our attention to the well-being of the athletes who risk everything on the field. More and more we begin to ask, "Are players receiving their due?"
In the 2013 documentary Schooled: The Price of College Sports, based on historian Taylor Branch's Atlantic article titled The Shame of College Sports, perspectives of athletes, educators, and analysts are blended together to paint a picture of the National Collegiate Athletic Association (NCAA) as an organization that exploits young people. Former NFL player Arian Foster describes his experience of poverty and hunger as a student athlete under the NCAA's system: "I go back to my dorm room and reality sets in. I open my refrigerator door and there's no food in the fridge, I don't have anything to show for what I just did." At the heart of the documentary a question brews around the erosion of the player's civil rights: Is it fair that an athlete is expected to give up their right to work, and make money in order to maybe make it to the professional level?
The answer increasingly seems to be no. In September of last year, California passed the Fair Pay to Play Act which allows collegiate athletes to sign paid contracts and receive compensation based on the use of their image, name, or likeness. The California victory builds upon recent years of costly litigation by players' lawyers against the NCAA. But this current wave of commentary, protests, and legal suits calling for fair compensation on behalf of the NCAA's so-called "student-athletes" is actually part of a much longer labor battle that reaches back to the 1950s.
A history of wrongs
In 1957 Billie Dennison, the recent widow of Ray Dennison, filed a claim against the NCAA for workmen's compensation benefits after Dennison died due to suffering head injuries while playing football for the Fort Lewis A&M Aggies. But after death-benefits were granted by the Industrial Commission of Colorado, the Colorado Supreme Court reversed the commission's award. Taylor Branch's 2011 book The Cartel: Inside the Rise and Imminent Fall of the NCAA details how the Colorado Supreme Court ruled that the university was not liable for the injury and subsequent death of Dennison because Fort Lewis was "not in the football business" since it received no benefits from organizing football games.
"I go back to my dorm room and reality sets in, I open my refrigerator door and there's no food in the fridge, I don't have anything to show for what I just did."
One small but strategic choice helped defeat Dennison's case in court. It was the use of the term "student-athlete." Credited to Walter Byers, the NCAA's first-ever president, the term distinguishes between NCAA players and sports professionals. This critical distinction was further assisted by over a decade of court battles which established the legal precedent that the colleges and universities which comprise the NCAA were not responsible for damages to its "student-athletes." Like the oft-cited 1957 Dennison ruling, the courts agreed that the NCAA was not in the football business.
That may have been true in the early 1950s, however at present, the NCAA and many of its member universities, are certainly in the football business. Across multiple states, head football coaches of member universities are often the highest-paid employee in the state. In a 2011 op-ed for The Atlantic, Branch opens up the article with an anecdote featuring Sonny Vaccaro, the man responsible for Michael Jordan's then-record shoe deal with Nike in 1984. Vaccaro told the Knight Commission on Intercollegiate Athletics that their faux indignation at him and his price was purely theatrics, telling the room "You sold your souls, and you're going to continue selling them. You can be very moral and righteous in asking me that question, sir." Vaccaro added with irrepressible good cheer, "but there's not one of you in this room that's going to turn down any of our money. You're going to take it. I can only offer it." A 2016 deal between Nike and the University of Michigan went for a record 173 million dollars and covered 31 University of Michigan collegiate athletic programs. The deal also included a ten million dollar signing bonus and had a contract length of ten years. The deal underscores exactly what Vaccaro was alluding to in his remarks to the Knight Commission. In addition to the merchandise deals with apparel companies like Nike, Adidas and Under Armor, conferences are also paid by networks to broadcast their games. The SEC (Southeastern Athletic Conference) is currently being paid 55 million dollars a year by CBS to exclusively broadcast their games, and you can guess how much of that money is trickling down to the "student athletes" who make it all possible. As Branch writes in the Atlantic "For all the outrage, the real scandal is not that students are getting illegally paid or recruited, it's that two of the noble principles on which the NCAA justifies its existence—"amateurism" and the "student-athlete"—are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes. The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not."
During a press conference ahead of Super Bowl XLIX, NFL cornerback and former NCAA player Richard Sherman was asked if players have enough time to take advantage of their so-called "free education." Sherman's response was sharp: "No…..I would love for a regular student to have the same schedule as a student athlete for just a quarter or just a semester… I would love for them to have to deal with their schedule when you can't schedule classes from 2-6 because of practice." Sherman discusses at length how a player's schedule is a constant time crunch, sandwiched between practice, meetings, and the coaches' constant reminders of the business of football that the player signed up for.
Unionizing
From the 70s onwards, college players have looked to the labor movement for a means of advocating for athlete's rights and establishing collective power as a check against the NCAA.
In 2014, a group of Northwestern football players, led by Kain Colter, attempted to make headway in forming a players union for college athletes. The idea behind the union was to ease players' financial burden in the event of injury, as universities are not required to pick up the bill; it is merely an option. Trading on the university's goodwill in case of injury backfired for former Texas Christian University football player Kent Waldrep who was paralyzed during a game against the University of Alabama in 1974. The university covered Waldrep's medical bills for nine months, but after that, they refused to make any more payments. During the 1990's Waldrep became embroiled in a series of lengthy legal battles with TCU where, similar to the ruling in the 1950s, the courts ruled that Waldrep was not an employee of the university and thus ineligible for workman's compensation damages.
The weekly expectation of labor in the form of practice in addition to the sheer amount of money tied up in coaching, recruitment, endorsement, and merchandise belie the truth that collegiate sports are in fact a business. A business with employees.
There has been a long history of players or individuals challenging the NCAA based on an employee-worker relationship. On paper this relationship does not exist, however, many of its hallmarks seem to hold. Students are expected to perform work for the university in the form of practices, workouts, and demonstrated prowess in games that raise the university's profile. Even though the NCAA officially caps practice time at 20 hours a week, in 2015, two former college athletes at the University of North Carolina at Chapel Hill alleged that the university actually had them practicing for over 40 hours a week. This lawsuit was supported by a 2011 survey of college athletes from other universities, revealing that UNC Chapel Hill was not the only university engaging in this practice.
Legally, however, the most critical element required for filing a workman's comp claim is missing: players are not given paychecks. Players contribute time and labor to maintain and elevate the university's reputation but they are not monetarily compensated and so do not pay taxes on their earnings. The ruling in the Kent Waldrep case concluded that for workmen's compensation claims involving players and universities to be valid "student-athletes" needed to have a taxable income from the university. For that reason, recent arguments are shifting away from workman's compensation and towards the notion of "student-athletes" as workers who are performing unpaid labor.
From workers comp to unpaid labor
To that end, the recent ruling by the State of California that allows players to earn money while in college represents a proverbial chink in the armor of the NCAA.
Though the ruling doesn't actually go into effect until 2023, it puts pressure on the NCAA to amend its rules to allow students to profit individually from endorsement deals. In addition to giving players the ability to earn from endorsement deals, players also gain the ability to sign with agents to represent them professionally in California's new bill. Vox's Alexia Fernandez Campbell notes in her article, "As with most legislation, those who oppose the California law are the ones who stand to lose the most. Emmert, president of the NCAA, sent a letter to California lawmakers earlier this year asking them not to pass the bill. He later called it an "existential threat" to the college sports model in an interview with CBS Sports. It's not hard to imagine their concern is that companies and brands will spend more money making deals with individual athletes and less money on deals with universities and cable advertising."
Despite the fact that member universities would still make 14 billion dollars annually off their player's exploits, this relatively small concession is one that the NCAA does not want to make. The NCAA's stance isn't that far removed from that of Uber and Lyft and other ride-share tech companies. They, much like the NCAA, are essentially arguing that in order for them to make money, they have to exploit the people who make it possible for them to profit. Actually, it may be California's law attempting to give Uber and Lyft drivers more rights that inspired lawmakers to take a closer look at the NCAA's business arrangement. The NCAA exploits the amateur status of "student-athletes" in an identical manner to Uber's use of the "contractor" status of its drivers in order to tap them as sources of unpaid labor. It is this exact arrangement which lead many drivers and would-be users of its app to organize a strike in order to impact the company's sales during its Initial Public Offering on the stock market. Although it remains to be seen if such a strike is even possible against the NCAA, particularly in a sport like football where the NCAA still remains a necessary evil in order to get to the professional level, the situations of both Uber drivers and so-called "student athletes" mirror one another.
There has been a long history of players or individuals challenging the NCAA based on an employee-worker relationship. On paper this relationship does not exist, however, many of its hallmarks seem to hold.
Exploitative labor practices in America find their precedent in older and more insidious institutions than football and ride-share apps. Charles Grantham in an article for Sports Illustrated cites the unsurprising statistic unearthed by sociologist Harry Edwards that Black men make up a small percent of college demographics but constitute a disproportionate percentage of collegiate athletic participants. What this says about "progress" is damning when you consider that even the NCAA has come to terms with the fact that most of the players who are playing college football or other sports will not make it to the professional level. Yet, these players, largely these Black men, are being used for the profit of the NCAA and then are discarded once their bodies have been used up. This arrangement parallels that of the original American capitalist enterprise of chattel slavery. Slave holders and the state created wealth from the use, sale, and trade of Black people and their labor while simultaneously denying them the ability to benefit from the economy driven by their very bodies. The charge against the NCAA is not just one of labor exploitation but racialized labor exploitation. In calling out the disproportionate use of Black labor in collegiate athletics, Edwards clarifies the socioeconomic position of many of the Black male students pre, during, and post college who participate in these athletic programs. Grantham uses the apt phrase "separate and unequal" to describe the particular educational experience allowed to many Black male athletes playing in major conferences.
The connection between the NCAA's hesitancy to pay student-athletes and the government's hesitancy to pay reparations to the descendents of slaves is clear to many, including ESPN host Bomani Jones and even the man responsible for the NCAA's current model of amateurism, Walter Byers himself. On "The Right Time" podcast, Jones quotes from Walter Byers' ignored autobiography "Unsportsmanlike Conduct" in which Byers lays out the reasons that the NCAA is okay with exploiting players, specifically Black players, calling it a "neo-plantation mentality." Though many players recognize the system's inequities, most are unwilling to jeopardize their opportunity to go pro by speaking out against the NCAA.
The NCAA's threats to drop colleges that adopt the California ruling may soon fall on deaf ears however, as a number of states including Florida are considering passing bills along the same lines as California. So it seems that collegiate players will likely receive compensation quicker than Black folks will see reparations. Indeed late last year, the NCAA announced that it would allow "student-athletes" to profit from their names and likenesses in a manner they called "consistent with the collegiate model." But Jay Bilas, a former Duke University athlete and lawyer, calls the NCAA's response to the California ruling a bluff, telling USA Today: "The whole 'fit with the collegiate model' is a made-up term for not allowing anything relevant to happen. I don't see any significant movement towards players having actual rights here. What (the NCAA) really means is 'severely limited and regulated' (changes) with very little consequence and benefit to the players."
Now as the clock ticks down to 2023, the option for the NCAA to bide its time is swiftly eroding. With pressure from the players and the courts mounting, the NCAA is effectively forced to do what they have long been loathe to do—split some of that 14 billion dollars with the players who have made that money possible.