Tweet
Continued.....
"All that television, all that revenue goes back to the schools," Calipari said. "You probably have $10 million that would go directly to the schools, to their academics and not have anything to do with athletics. You'd be able to give that living expense to all your athletes.”
School presidents are loath to discuss the idea of breaking away from the NCAA, though several have indicated that the largest football programs could soon split into their own division. But that doesn’t mean high-level administrators aren’t talking having quiet conversations about leaving the NCAA behind, especially given the amount of money at stake.
“That’s absolutely a feasible option,” Bilas said. “There are things being talked about now that have never been talked about before. The big schools want to operate the way they see fit. If they can do that inside the NCAA structure, I think that’s preferable. But of course they’re thinking about it. They did it in football. We’re talking billions of dollars here. The amount of money that’s at stake, of course they’re considering it.”
Such a break would not be unprecedented. In 1979, the College Football Association, a coalition of the biggest NCAA football programs, attempted to negotiate a national television contract for its members with NBC. The NCAA, involved in its own television negotiations, put its foot down, saying it alone had the authority to negotiate television contracts for members, which it restricted to no more than one televised game per year. The University of Oklahoma and University of Georgia sued the NCAA, claiming it had violated federal antitrust law, and the Supreme Court agreed. The ruling allowed the schools and their conferences to negotiate their own television rights deals and effectively split the largest schools from the NCAA for football purposes. (Even today, the NCAA does not regulate the championship and postseason for the Football Bowl Subdivision, college football’s top division. It is the only sport for which that is true.)
Without control over football or a cut of the revenues generated by television, bowls or championships, the NCAA depends almost solely on the end of season men’s basketball tournament for revenue. And does the tournament ever generate revenue. In 2010, the NCAA reached an 14-year agreement, worth $10.8 billion, with CBS and Turner Sports to televise, for the first time, every one of the tournament’s games. If the largest schools, which, with the help of the Bowl Championship Series, just crafted a football playoff, figured out a way to manage an event similar to the NCAA Tournament, a full split from the NCAA would become even more lucrative – and even more probable. “It’d make (schools) more money because it all goes straight to them,” Bilas said. “TV would flock to that.”
But even if the biggest conferences and schools abandoned the NCAA, what would stop them from perpetuating the status quo that avoids paying the athletes on which it would depend? After all, much of the support for paying players from coaches, Calipari included, is in the form of the stipend, and while that is an improvement over the current situation, it still leaves the players voiceless in the process. The claims that exist now -- that players are amateurs or that such a system would be unsustainable -- would still exist, even if the money was greater and the NCAA restrictions were no longer present. Wouldn't universities, awash in even more cash, want to hold onto it just the same?
When Bilas was a senior on Duke University's basketball team, a former player-turned-activist approached him and his teammates about boycotting the 1986 Final Four. The players, under the proposed protest, would suit up and take the court like normal, but when the game was to begin, they would refuse to take the court, a show of symbolic unity against the NCAA.
“My senior year, he came to me, he wanted us to boycott the Final Four,” Bilas said. “I said sure, but can’t we do it next year? I’m playing in it this year."
The protest never materialized, and similar efforts that have been bandied about since haven't either. The problem, Bilas said, is that athletes view college sports as a gateway, a mere stepping stone, to the professional ranks. Rocking the boat and missing a once-in-a-lifetime chance at the Final Four or a championship over a compensation issue that likely won’t change while that player is in college is hardly a rational decision.
“If you’re an athlete, you’re saying, ‘I’m only going to be here for four years,’” Bilas said. “These are issues that have lasted for almost 100 years. It’s going to take an athlete with a lot of foresight and a lot of guts and a long view beyond themselves to do that.”
An unwillingness to act is hardly the only barrier to student protest or organization. Because they are not recognized as employees, players receive no rights under federal or state labor laws.
“They don’t have any rights under federal labor laws,” Jeffrey Kessler, a labor attorney who has represented both the National Football League Players Association and the National Basketball Association Players Association in labor disputes, said. “They don’t get to form a union, strike, collectively bargain, file unfair labor practice complaints. That’s not available to college athletes.”
What athletes can do, Kessler said, is form an association that can represent them in class-action lawsuits. “There has been some effort at this, to file antitrust cases against the various restrictions the NCAA imposes to basically exploit the athletes without paying them,” Kessler said, later adding that “there are good (legal) arguments that Division I football is basically a business, and that students are exploited as workers. And therefore schools should be free to compensate athletes in any manner that they want to, without NCAA restrictions.”
Former players have begun challenging different NCAA restrictions in court. In 2009, former University of California-Los Angeles basketball star Ed O’Bannon sued the NCAA, claiming his scholarship agreement did not grant it use of his likeness in video games, commercials, rebroadcasts, and merchandise sales “in perpetuity” without compensation. The lawsuit, now a class-action complaint, seeks to change the way athletes are compensated for use of their likeness both during and after college, and if the NCAA seeks to uphold its amateur values, the suit says, the compensation could be “temporarily held in trust for those individuals until cessation of their collegiate careers.” The suit wants players to receive 50 percent of television revenues and one-third of revenues from video games.
Another lawsuit, dismissed by the 7th Circuit Court of Appeals in June but reintroduced in July, is challenging NCAA scholarship restrictions, again claiming a violation of antitrust law.
Meanwhile, organizations like the National Collegiate Players Association have come to the aide of players to fight for their rights and protections. The NCPA is not currently seeking to unionize players, but it is pushing alternatives such as the Student-Athlete Bill of Rights, the first version of which was signed into law by California Gov. Jerry Brown last year. The California law, based on NCPA models, provides better scholarship and health protections to athletes at California’s largest colleges and universities.
Others, like University of Illinois professor Michael LeRoy, are examining ways college athletes could organize and associate even without full labor protections. LeRoy published a research paper that argues college athletes operate in an “invisible labor market” and function as employees, and as such, they should have the right to bargain collectively. His proposal to fix that – tailored specifically for college athletes -- would not allow athletes to bargain over wages and would not afford them the right to strike, but it would allow bargaining and arbitration on other issues, such as health protections and scholarships. The mere threat of organization, LeRoy argues, could cause the NCAA to grant players more of a say in the system.
LeRoy described his proposal as a “piecemeal” reform that would lead to a more vibrant and complete conversation about athletes’ rights in the future.
“As much as I think the NCAA is pretending that these football players are student-athletes and amateurs, especially at big programs, that’s an immovable concept,” LeRoy said. “And if that’s the case, the question becomes, how do you give them non-monetary forms of compensation that do benefit them? I think that would set up a conversation for future generations to say, ‘What the heck? This isn’t amateur athletics at all, so let’s not pretend anymore.’”
But LeRoy says he is pessimistic about the organizing of athletes. Because of that, he thinks changing the status quo in college sports will ultimately come from outside the game, and from an unlikely place: state legislatures.
As far back as 1988, the Nebraska state legislature approved a law that would allow the University of Nebraska, a football powerhouse, to pay a stipend to its players if other states in the Big XII, the conference Nebraska belonged to until 2011, passed similar laws. The legislation was vetoed by then-governor Kay Orr.
State Sen. Ernie Chambers revived the legislation in 2003, and then-governor Mike Johanns pledged to sign that version if it passed. It never did. In recent years, similar legislation has been introduced in Ohio, California and Utah, but none of the proposals passed (though California did pass the aforementioned Student-Athlete Bill of Rights).
LeRoy, however, believes that as the business of college athletics continues to grow, those efforts will continue.
“At some point, this money-making beast is just going to fall under its own weight, where lawmakers either at the federal or state level are going to say it’s kind of ridiculous that players don’t get anything out of this,” he said. “That’s conjecture, but that’s where I think change has to come from.”
The key to gaining even more traction in those debates goes back to the definition of student-athlete, and whether athletes are students or employees.
“Everything about college athletes indicates that they’re more like an employee,” Bilas said. “You go when they say, you play when they say, you practice when they say. That’s what employees do,” LeRoy agreed.
One way state or federal lawmakers could enhance the rights of athletes, he said, was “to literally open up their state wage and hour laws and define Division I football as a compensable form of employment.” That might be a radical step, he admitted, “but when you look at the legal condition of employment, there’s little or no trouble in qualifying this activity for compensation.”
A similar fight has helped graduate students gained labor protections. The National Labor Relations Board ruled last year that graduate students served a dual purpose – they weren’t purely students or employees – and that ruling granted them protections under state labor laws. In multiple states, graduate students who also work for their university are allowed to collectively bargain for wages and benefits, and it is hard to draw a distinction between the dual purpose they serve and the purpose served by athletes in the big business of college sports.
Using legislation and labor law to define athletes as employees, or at least as partial employees, could at least push some of that money toward the people whose backs bear the brunt of making it all work.
How college athletes will break the NCAA spell of amateurism is still unclear. But the entire debate no longer has a feel of fatalism to it. There is growing sentiment that the system is broken, that arguments for the sanctity of amateurism or the sustainability of the status quo are not credible justifications for a business built on the back of free labor.
Similar arguments against the rights of athletes, Bilas noted, were made when the Olympics abandoned the amateur model and when Major League Baseball’s reserve clause was disputed in the Supreme Court. The NCAA, he added, is unable to enunciate exactly what “amateurism” brings to its product, particularly when a growing chorus of doubters is beginning to see through the lie.
“Their argument has no principle behind it,” Bilas said. “What is the principle behind denying athletes the same rights everyone else has?”
“The whole thing,” he added, “is a sorry sham.”
"All that television, all that revenue goes back to the schools," Calipari said. "You probably have $10 million that would go directly to the schools, to their academics and not have anything to do with athletics. You'd be able to give that living expense to all your athletes.”
School presidents are loath to discuss the idea of breaking away from the NCAA, though several have indicated that the largest football programs could soon split into their own division. But that doesn’t mean high-level administrators aren’t talking having quiet conversations about leaving the NCAA behind, especially given the amount of money at stake.
“That’s absolutely a feasible option,” Bilas said. “There are things being talked about now that have never been talked about before. The big schools want to operate the way they see fit. If they can do that inside the NCAA structure, I think that’s preferable. But of course they’re thinking about it. They did it in football. We’re talking billions of dollars here. The amount of money that’s at stake, of course they’re considering it.”
Such a break would not be unprecedented. In 1979, the College Football Association, a coalition of the biggest NCAA football programs, attempted to negotiate a national television contract for its members with NBC. The NCAA, involved in its own television negotiations, put its foot down, saying it alone had the authority to negotiate television contracts for members, which it restricted to no more than one televised game per year. The University of Oklahoma and University of Georgia sued the NCAA, claiming it had violated federal antitrust law, and the Supreme Court agreed. The ruling allowed the schools and their conferences to negotiate their own television rights deals and effectively split the largest schools from the NCAA for football purposes. (Even today, the NCAA does not regulate the championship and postseason for the Football Bowl Subdivision, college football’s top division. It is the only sport for which that is true.)
Without control over football or a cut of the revenues generated by television, bowls or championships, the NCAA depends almost solely on the end of season men’s basketball tournament for revenue. And does the tournament ever generate revenue. In 2010, the NCAA reached an 14-year agreement, worth $10.8 billion, with CBS and Turner Sports to televise, for the first time, every one of the tournament’s games. If the largest schools, which, with the help of the Bowl Championship Series, just crafted a football playoff, figured out a way to manage an event similar to the NCAA Tournament, a full split from the NCAA would become even more lucrative – and even more probable. “It’d make (schools) more money because it all goes straight to them,” Bilas said. “TV would flock to that.”
But even if the biggest conferences and schools abandoned the NCAA, what would stop them from perpetuating the status quo that avoids paying the athletes on which it would depend? After all, much of the support for paying players from coaches, Calipari included, is in the form of the stipend, and while that is an improvement over the current situation, it still leaves the players voiceless in the process. The claims that exist now -- that players are amateurs or that such a system would be unsustainable -- would still exist, even if the money was greater and the NCAA restrictions were no longer present. Wouldn't universities, awash in even more cash, want to hold onto it just the same?
When Bilas was a senior on Duke University's basketball team, a former player-turned-activist approached him and his teammates about boycotting the 1986 Final Four. The players, under the proposed protest, would suit up and take the court like normal, but when the game was to begin, they would refuse to take the court, a show of symbolic unity against the NCAA.
“My senior year, he came to me, he wanted us to boycott the Final Four,” Bilas said. “I said sure, but can’t we do it next year? I’m playing in it this year."
The protest never materialized, and similar efforts that have been bandied about since haven't either. The problem, Bilas said, is that athletes view college sports as a gateway, a mere stepping stone, to the professional ranks. Rocking the boat and missing a once-in-a-lifetime chance at the Final Four or a championship over a compensation issue that likely won’t change while that player is in college is hardly a rational decision.
“If you’re an athlete, you’re saying, ‘I’m only going to be here for four years,’” Bilas said. “These are issues that have lasted for almost 100 years. It’s going to take an athlete with a lot of foresight and a lot of guts and a long view beyond themselves to do that.”
An unwillingness to act is hardly the only barrier to student protest or organization. Because they are not recognized as employees, players receive no rights under federal or state labor laws.
“They don’t have any rights under federal labor laws,” Jeffrey Kessler, a labor attorney who has represented both the National Football League Players Association and the National Basketball Association Players Association in labor disputes, said. “They don’t get to form a union, strike, collectively bargain, file unfair labor practice complaints. That’s not available to college athletes.”
What athletes can do, Kessler said, is form an association that can represent them in class-action lawsuits. “There has been some effort at this, to file antitrust cases against the various restrictions the NCAA imposes to basically exploit the athletes without paying them,” Kessler said, later adding that “there are good (legal) arguments that Division I football is basically a business, and that students are exploited as workers. And therefore schools should be free to compensate athletes in any manner that they want to, without NCAA restrictions.”
Former players have begun challenging different NCAA restrictions in court. In 2009, former University of California-Los Angeles basketball star Ed O’Bannon sued the NCAA, claiming his scholarship agreement did not grant it use of his likeness in video games, commercials, rebroadcasts, and merchandise sales “in perpetuity” without compensation. The lawsuit, now a class-action complaint, seeks to change the way athletes are compensated for use of their likeness both during and after college, and if the NCAA seeks to uphold its amateur values, the suit says, the compensation could be “temporarily held in trust for those individuals until cessation of their collegiate careers.” The suit wants players to receive 50 percent of television revenues and one-third of revenues from video games.
Another lawsuit, dismissed by the 7th Circuit Court of Appeals in June but reintroduced in July, is challenging NCAA scholarship restrictions, again claiming a violation of antitrust law.
Meanwhile, organizations like the National Collegiate Players Association have come to the aide of players to fight for their rights and protections. The NCPA is not currently seeking to unionize players, but it is pushing alternatives such as the Student-Athlete Bill of Rights, the first version of which was signed into law by California Gov. Jerry Brown last year. The California law, based on NCPA models, provides better scholarship and health protections to athletes at California’s largest colleges and universities.
Others, like University of Illinois professor Michael LeRoy, are examining ways college athletes could organize and associate even without full labor protections. LeRoy published a research paper that argues college athletes operate in an “invisible labor market” and function as employees, and as such, they should have the right to bargain collectively. His proposal to fix that – tailored specifically for college athletes -- would not allow athletes to bargain over wages and would not afford them the right to strike, but it would allow bargaining and arbitration on other issues, such as health protections and scholarships. The mere threat of organization, LeRoy argues, could cause the NCAA to grant players more of a say in the system.
LeRoy described his proposal as a “piecemeal” reform that would lead to a more vibrant and complete conversation about athletes’ rights in the future.
“As much as I think the NCAA is pretending that these football players are student-athletes and amateurs, especially at big programs, that’s an immovable concept,” LeRoy said. “And if that’s the case, the question becomes, how do you give them non-monetary forms of compensation that do benefit them? I think that would set up a conversation for future generations to say, ‘What the heck? This isn’t amateur athletics at all, so let’s not pretend anymore.’”
But LeRoy says he is pessimistic about the organizing of athletes. Because of that, he thinks changing the status quo in college sports will ultimately come from outside the game, and from an unlikely place: state legislatures.
As far back as 1988, the Nebraska state legislature approved a law that would allow the University of Nebraska, a football powerhouse, to pay a stipend to its players if other states in the Big XII, the conference Nebraska belonged to until 2011, passed similar laws. The legislation was vetoed by then-governor Kay Orr.
State Sen. Ernie Chambers revived the legislation in 2003, and then-governor Mike Johanns pledged to sign that version if it passed. It never did. In recent years, similar legislation has been introduced in Ohio, California and Utah, but none of the proposals passed (though California did pass the aforementioned Student-Athlete Bill of Rights).
LeRoy, however, believes that as the business of college athletics continues to grow, those efforts will continue.
“At some point, this money-making beast is just going to fall under its own weight, where lawmakers either at the federal or state level are going to say it’s kind of ridiculous that players don’t get anything out of this,” he said. “That’s conjecture, but that’s where I think change has to come from.”
The key to gaining even more traction in those debates goes back to the definition of student-athlete, and whether athletes are students or employees.
“Everything about college athletes indicates that they’re more like an employee,” Bilas said. “You go when they say, you play when they say, you practice when they say. That’s what employees do,” LeRoy agreed.
One way state or federal lawmakers could enhance the rights of athletes, he said, was “to literally open up their state wage and hour laws and define Division I football as a compensable form of employment.” That might be a radical step, he admitted, “but when you look at the legal condition of employment, there’s little or no trouble in qualifying this activity for compensation.”
A similar fight has helped graduate students gained labor protections. The National Labor Relations Board ruled last year that graduate students served a dual purpose – they weren’t purely students or employees – and that ruling granted them protections under state labor laws. In multiple states, graduate students who also work for their university are allowed to collectively bargain for wages and benefits, and it is hard to draw a distinction between the dual purpose they serve and the purpose served by athletes in the big business of college sports.
Using legislation and labor law to define athletes as employees, or at least as partial employees, could at least push some of that money toward the people whose backs bear the brunt of making it all work.
How college athletes will break the NCAA spell of amateurism is still unclear. But the entire debate no longer has a feel of fatalism to it. There is growing sentiment that the system is broken, that arguments for the sanctity of amateurism or the sustainability of the status quo are not credible justifications for a business built on the back of free labor.
Similar arguments against the rights of athletes, Bilas noted, were made when the Olympics abandoned the amateur model and when Major League Baseball’s reserve clause was disputed in the Supreme Court. The NCAA, he added, is unable to enunciate exactly what “amateurism” brings to its product, particularly when a growing chorus of doubters is beginning to see through the lie.
“Their argument has no principle behind it,” Bilas said. “What is the principle behind denying athletes the same rights everyone else has?”
“The whole thing,” he added, “is a sorry sham.”
Comment