It's that time of year again. The first week of March Madness has washed over us and many are wishing that they still had the sick days they spent watching their brackets get destroyed. But this diary isn't about free throws, fouls and three point shots.
This diary is about something much deeper than any of that. It is about the growing debate over whether or not college "student-athletes" should be unionized, paid for their labor or share in the ancillary revenue generated by their likenesses.
Follow below the orange squigglies of professional amateurism as I attempt to unpack the issue of compensation for college athletes.
Or, better yet, read this by civil rights historian Taylor Branch in The Atlantic.
A Microcosm
For those unfamiliar with the logistics of the NCAA Men's Basketball Tournament, I will give a quick explanation of the following tweets.
The games held during the second and third rounds are like mini tournaments. Games are held in several sites across the country. The teams face off against each other with the winner of each "mini-pod" advancing to the Sweet 16. The Sweet 16 is also held in four different locations with the winner from each location advancing to the Final Four.
The second round games take place on either Thursday or Friday with the winners advancing to play each other on Saturday or Sunday, respectively. Second round losers often go home as soon as their tournament run is done but the winners stay in town until the second game. And, being human, they need to eat.
So there you have it. Unless the schools choose to feed them, these players are on their own to feed themselves. The catch is that they can't get a job so they will have some pocket money. And, of course, the tournament can't pay to feed them because that would tarnish the patina of amateurism the NCAA has so carefully crafted.
"Student Athlete": Birth of a Notion
"We crafted the term student-athlete and soon it was embedded in all NCAA rules and interpretations."
- Walter Byers, 1st Executive Director of the NCAA
The NCAA created the term in response to a lawsuit from the widow of Ray Dennison, who died while playing football for the Fort Lewis A&M Aggies. Dennison's wife wanted worker's compensation death benefits and the NCAA, perhaps fearing bankruptcy, reacted with the concept of the "student athlete". The concept has been used as a defense in countless injury lawsuits.
According to Taylor Branch, excerpted in Deadspin:
The term student-athlete was deliberately ambiguous. College players were not students at play (which might understate their athletic obligations), nor were they just athletes in college (which might imply they were professionals). That they were high-performance athletes meant they could be forgiven for not meeting the academic standards of their peers; that they were students meant they did not have to be compensated, ever, for anything more than the cost of their studies.
A Players' Union?
A group of football players from
Northwestern University joined together to submit a request to the NLRB to be recognized as a union.
"The school is just playing by the rules of their governing body, the NCAA. We're interested in trying to help all players -- at USC, Stanford, Oklahoma State, everywhere. It's about protecting them and future generations to come."
"Right now the NCAA is like a dictatorship. No one represents us in negotiations. The only way things are going to change is if players have a union."
- Kain Coulter, Northwestern quarterback
Of course, the NCAA doesn't think that it's "student athletes" meet the definition of employee under the National Labor Relations Act. Not that it has any vested interest in keeping the status quo. I won't even bring up the discussions about the NCAA and NFL's relationship to
concussions suffered by football players.
"This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize."
-- NCAA statement
Anti Trust Lawsuits
Former Cal basketball player Ed O'Bannon filed a lawsuit against the NCAA, video game maker EA Sports and the Collegiate Licensing Company.
Rather than filing suit on behalf of himself, or naming every player represented in a licensed video game or whose licensed jersey was ever sold, the suit became a class-action suit.
What is a class-action lawsuit?
A class action lawsuit is an action in which not all of the plaintiffs are named to the suit, but if the suit is successful, then the defendant has to pay damages not just to the people who lead the suit (i.e. O'Bannon) but anyone who has been harmed by its actions. Class actions are feasible in two scenarios: 1) where the harms to individual plaintiffs are so small that it wouldn't make sense for them to bring individual lawsuits, but the overall harm is large, and 2) where the plaintiffs are so uniformly poor that they can't afford to bring suit. This is a case of number 1), though number 2) certainly applies to current athletes.
So, here's the nitty gritty. College athletes sign a waiver allowing the NCAA to use their likenesses for things like jerseys and video games. So far, no problem, at least for the purposes of this lawsuit. We'll leave the issue of whether or not this is right, moral or legal for another time. The
legal question will be addressed in June.
Anyhow, EA decided to add classic teams, like O'Bannon's 1996 UCLA Bruins, to one of its games. O'Bannon, and everyone else on any of the classic teams, were not compensated for using their likenesses. O'Bannon, currently a car dealer outside of Las Vegas, decided to bring suit. You can assign whatever motive you like but legends Bill Russell and Osacar Robertson signed on to the lawsuit. So there's that.
Why is this an anti-trust suit? How does Sherman apply? Check out this article for an in-depth explanation.
O'Bannon's argument is that he was forced to sign the waiver in order to play. He needed to play to get a scholarship (and, presumably, earn the opportunity to play professionally). The lawsuit contends that O'Bannon could have bargained with EA, or any video game maker, for the use of his likeness. Therefore, the argument goes, the waiver fixes the price at which O'Bannon can sell his likeness (at zero). This means that the waiver artificially depresses how much money O'Bannon could earn.
Last Monday,
another suit was filed by four current NCAA athletes agains the NCAA and the "power conferences", the 5 largest and most lucrative conferences within the NCAA.
This lawsuit seeks to bar the NCAA "from competing financially for players and limit payments to tuition and related fees." Should this lawsuit prove successful, colleges will have to start bidding for top prospects. This will, of course, lead to an arms race but at least some players will get paid.
"We're looking to change the system. That's the main goal," [plaintiff's attorney Jeffrey] Kessler said. "We want the market for players to emerge."
Still Think Its About Sport, Not Business?
Okay, let's look at a group of people who are allowed to make money from NCAA sports, the coaches. The average NCAA football coach's salary was $1.64 million in 2012 for the Bowl Subdivision, the big time programs. The average NCAA men's basketball coach's salary was $1.47 million for the coaches in last year's tournament.
Oh, and the schools and conferences, especially the "power" conferences?
College athletes generate more than $16 billion in television contracts for the NCAA and its conferences, as well as revenue from sponsorships, ticket and merchandise sales and payouts for championships, the plaintiffs said in their filing. The 65 schools in the ["power"] conferences reported $5.15 billion in related revenue in 2011-12, much of it from long-term television broadcast contracts, according to the complaint.
NCAA President Mark Emmert Appears on Meet The Press
The issue of paying NCAA athletes got the signature David Gregory treatment yesterday, although I think Emmert got grilled harder than many politicians are.
But hey, Emmert only makes $2 million a year to put up with that sort of thing. His argument against paying athletes goes like this:
They want to unionize. And then to unionize them, you have to say, "These are employees." If you're going to do that, it completely changes the relationship. I don't know why you'd want them to be students. If they're employees and they're playing basketball for you, don't let calculus get in the way.
Ummmmm, yeah, that's what's getting in the way.
video here transcript here
Must Read on the MTP Segment
Dave Zirin at The Nation sees one underlying reason for all of this, racism.
The issue of the NCAA is a racial justice issue. If you don't frame it in that way, if you don’t challenge Mark Emmert on the fact that faux-amateurism saps black wealth in the United States, if you don’t point out why Taylor Branch, Dr. King’s biographer, said the NCAA “has the whiff of the plantation”, then you are not having a serious discussion. You are bullshitting. Meet the Press did not give us a serious discussion. Instead you had Mark Emmert, a man on the hot-seat, sitting far too comfortably for our own good.
Maher Breaks It Down
Or, listen to Upton Sinclair (from 1922):
“College athletics, under the spur of commercialism, has become a monstrous cancer.”
No matter who you listen to, except the NCAA, the sentiment is the same. College athletics needs to change the way that it does business. The NCAA either needs to include student representatives in it's internal processes, do a better job of protecting players or start paying athletes some of the revenue that they help generate. That should go for every athlete by the way, not just those in the big money
sports businesses.