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Is the Outrageous Exploitation of College Athletes Finally Coming to an End?

A growing chorus of doubters is beginning to see through the NCAA's insistence that its athletes are amateurs.
 
 
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Confetti rained on the University of Alabama football team as they stood on the makeshift stage that had been quickly assembled atop the turf of Miami's Sun Life Stadium. The team had just completed its third national championship in four years by walloping Notre Dame in the Bowl Championship Series National Championship Game, and now it was time to celebrate. The 80,000-plus crowd -- smaller now that the Notre Dame contingent had largely vacated, but still boisterous thanks to Alabama fans and those lucky enough to afford a ticket -- looked on admirably as the trophy was awarded to Nick Saban, the Tide's $5 million-a-year head coach.

To an outsider unfamiliar with American collegiate sports, or to anyone watching objectively, it would be impossible to differentiate between the scene on that balmy Miami night and the one that will commence in three weeks when the National Football League crowns its champion at Super Bowl XLVII. But there is one distinction that lies beneath the hoopla, and it is one that makes all the difference between the college spectacle and the professional one: Alabama's players, unlike their NFL counterparts, are not paid to play the game.

The National Collegiate Athletic Association, college sports' governing body since 1906, does not look fondly on the idea of paying its players, even as its games have grown into a billion-dollar industry. The NCAA argues that its players are amateurs, that amateurism is the defining goal and attribute of college sports, that without amateurism, the entire system would collapse on top of itself.

There have been challenges to the NCAA’s amateurism mystique before, but it was author and civil rights historian Taylor Branch who framed it in a new way and drew new attention to the debate with"The Shame of College Sports," a tour de force against the NCAA that graced the cover of theAtlantic. The piece laid waste to the idea that the players were “student-athletes” upholding the ideals of amateurism, and as such, had no right to compensation.

Branch raised the specter that the biggest travesty in college athletics is not that the athletes are unpaid, but that they do not have a say in whether they should be paid or whether the scholarships they are provided are fair compensation for their work. He framed the issue of paying college athletes as one of fundamental rights and challenged the notion that the athletes – particularly football players – were anything less than employees operating in a big business, one that operates much like a cartel. “Rights are rights because they should come first,” Branch told me when I spoke to him about the issue last year. “Whether it’s $3,000 or $30,000 is something schools should work out, but players should have a voice.”

There are many ways players could get that voice, and action has been taken both inside and outside college sports to make it happen. The possibility that the biggest conferences could leave the NCAA and compensate their players has arisen even among the ranks of recognizable coaches. Former players have begun challenging the NCAA in court, arguing that the organization is violating their rights. College professors and labor attorneys have studied the argument that players are indeed employees and have pushed ways that they could organize to better advocate for themselves, while outside groups have attempted to help players do just that. State legislators, meanwhile, have begun proposing legislation that would force the NCAA’s hand.

Across the country, a debate that was once relegated to the barroom has moved into boardrooms and classrooms, statehouses and courthouses. What it all adds up to is an unprecedented push for the rights of college athletes coming from fronts both inside and outside the NCAA structure.

A number of issues have precipitated that debate from the inside. In recent years, football's biggest conferences have begun poaching teams from each other in a race for the money that new members in new, bigger television markets could bring. Since the University of Miami, Virginia Tech and Boston College shunned the Big East for the Atlantic Coast Conference in 2004, 10 other schools have left one of football's six major conferences for another. The motivation is money: bigger conferences with teams in more television markets mean more lucrative television packages from networks like ESPN, CBS and Fox Sports.

That expansion, along with the BCS playoff that will begin in 2014, will generate millions of dollars in new revenue for universities, all because of football.

The big business that is American college athletics continues to prosper, even if the labor on which it depends does not. But because players are defined as student-athletes and not as employees, they don’t share in the wealth. And the NCAA’s arguments continue to shift from amateurism to sustainability.

That paying players is unsustainable, that there isn't enough money to make it work, is a laughable excuse to people like Jay Bilas, a college basketball analyst for ESPN who regularly sees the business up close. There would be plenty of money to pay players, he argues, if it was allocated differently. “They always go to amateuris;  then, when that fails, they say there’s not enough money,” Bilas said of NCAA defenders. “They pay themselves first, then say there’s not enough left over for the athlete. That’s absurd.”

At the biggest schools, that would seem to be the case. The University of Texas pays just four members of its athletics staff -- its athletic director, men's and women's basketball head coaches, and football head coach -- $9.8 million a year, according to salary reports from USA Today and Forbes. Ohio State University pays a collective $8.7 million to the same four positions. Twelve schools paid a collective $31 million in buyouts after firing their coaches this year. Ohio State embarked on a $19 million renovation of its basketball arena in 2012; at the same time, it made a $7 million upgrade to the video screens at its football stadium. Texas is planning a full-scale renovation of athletic facilities that will undoubtedly have a price tag in the tens of millions.

Across the top-tier of college athletics, the stories are the same. In 2011, there were 31 men's basketball coaches who made at least $1 million, according to Forbes. There were five coaches in women's basketball, long considered a non-revenue sport, who topped that same threshold (in 2007, just one women's coach made more than $1 million). The $5.4 million Alabama paid Nick Saban to coach its football team in 2012 would make him one of the 10 highest-paid coaches in the NFL and would put him just outside the top 10 of highest paid coaches in American professional sports. The average head coaching salary in college football’s top division is now $1.64 million, a 44 percent increase since 2007, and that average is $2.3 million or higher in three of the six BCS conferences.

The money will only continue to pour in. The Southeastern Conference has two television deals worth more than $3 billion combined, and after adding Texas A&M and the University of Missouri last year, it is in the process of renegotiating them for even more money. The Big XII, Big Ten, ACC, and Pac-12 have followed with similar, if slightly less lucrative, deals. The Big Ten now has its own 24-7 sports network; Texas started the Longhorn Network to broadcast its sporting events across the state. The BCS recently signed a 12-year agreement with ESPN that will reportedly pay it $5.6 billion, or roughly $470 million a year. That money will be divvied among schools too.

At the same time, universities have begun exempting more and more costs from the value of a full scholarship, adding fees that aren't covered by the aid athletes receive and creating a gap between that amount and the amount they owe their schools.

The response from the NCAA has been to add a yearly stipend to the value of the scholarship, though smaller schools have balked repeatedly and blocked final approval. Such a stipend, the organization argues in a bizarre display of logical gymnastics, amounts to an extension of financial aid and maintains the integrity of amateurism. It is not, NCAA president Mark Emmert asserts, a path toward paying players.

The proposal is supported broadly, at least by college coaches at the biggest schools. All 14 of the Southeastern Conference's head football coaches have said players should have some stake in the financial success of their programs, which are collectively the most lucrative in college football. So has Texas head coach Mack Brown, who makes $5.3 million a year at the helm of one of college football's richest empires.

The rise of the mega-conferences and frustration with a lack of progress in the stipend process, though, has driven speculation about other alternatives. And in recent years, one of the NCAA’s most well-recognized coaches, the leader of one of college sports’ most well-recognized teams, spoke of a new possibility: leaving the NCAA altogether.

The idea that the biggest schools could abandon the NCAA was little more than backroom speculation during the recent college shake-ups, but it hit the mainstream when John Calipari, the charismatic head coach of the University of Kentucky men's basketball team, floated the idea last spring. Calipari, ever the provocateur, predicted that the large schools would consolidate into four major conferences and break away from the NCAA before his career was finished.

"They’re not going to be around long. The NCAA will not," Calipari told theSporting News. "Before I retire from coaching, they will no longer oversee college athletics. They will, but it won’t be the four power conferences—they’ll be on their own.”

A year before, Calipari had suggested that breaking away from the NCAA would allow the biggest schools to institute a stipend system the way they see fit, without it being derailed by the smaller schools or the NCAA. It would also, he said, result in far more money for the schools.

"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.”

Travis Waldron is a reporter/blogger for ThinkProgress.org at the Center for American Progress Action Fund.

 
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