A small but aggressive movement against the National Collegiate Athletic Association (N.C.A.A.) and its Division I member universities has received two judicial body blows in the last four months. The recent decisions reveal a fierce and seemingly insurmountable disagreement around whether or not college athletes deserve to be paid. They also show how the conflict between the legitimate interests of both sides must eventually be resolved.
In mid-August, the National Labor Relations Board dismissed a petition to unionize brought by athletes on Northwestern University’s football team. The decision was made on procedural grounds:
Our decision is primarily premised on the finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case. (Board Decision, p. 3)
“No thank you, we’d rather not.” Fine. The Board’s arguments are plausible and it’s their prerogative to deny jurisdiction. But the decision’s substantive effect should be clear: The players wanted to unionize. To unionize, they must be university employees. They argued that the time and energy put into their team makes them university employees.
The college sports establishment (CSE) disagrees. It argued that student-athletes are first and foremost students. Thus, even if the time and effort playing football rose to that of other university employees, the athletes still couldn’t win this claim—their status as students simply overrides. The Board’s decision to punt on this question legitimizes the CSE’s view.
In late-September, a 9th Cir split-panel held that the N.C.A.A. does not violate the Sherman Antitrust Act when it caps compensation for the use of athletes’ names, images, and likenesses (NILs) at $0. The opinion vacated a district court holding that the N.C.A.A. does violate the Sherman Act unless it requires schools to pay up to $5,000/year deferred compensation for NIL use.1
The majority’s de novo review disagreed with the lower court because it felt that paying N.C.A.A. athletes for their NILs would undermine amateurism’s procompetitive benefits. There is just something different about amateur sports and this difference is “at the bedrock [of the N.C.A.A.’s] popularity.” (Affirmatively quoting testimony from trial, 9th Cir Opinion, fn. 22). The court doesn’t say what this something different actually comes down to, but knows that paying amateurs for their NILs will cause its erosion:
The difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap. Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point. We have little doubt that plaintiffs will continue to challenge the arbitrary limit imposed by the district court until they have captured the full value of their NIL. At that point the N.C.A.A. will have surrendered its amateurism principles entirely and transitioned from its particular brand of football to minor league status. (9th Cir Opinion, pp 61-62, internal quotes omitted).2
This holding’s substantive effect should also be made explicit: Fans don’t see D1 college football or basketball as minor-league versions of the NFL or NBA because the players are “amateurs,” and for some not-so-clear-but-totally-obvious reason amateurs don’t get paid for their prowess on the field. “[T]he district court,” the panel remarked in exasperated italics, “ignored that not paying student-athletes is precisely what makes them amateur.” (9th Cir Opinion, p. 57, internal citations from original).
Something awkward should already be apparent – a sense that the two sides are talking past one another. Or perhaps with more precision: The above legal controversies represent a conflict between D1 athletes and the CSE that causes myth and reality to collide. One side sees the CSE’s position as nothing more than anabhorrent and disingenuous attempt to justify free labor. The other doesn’t see why students don’t appreciate a scholarship that lets them attend a (otherwise unattainable) top university and play sports at such a prestigious level. One side sees enormous TV deals filling university and N.C.A.A. coffers due to the exploits of young,primarily black, men who are treated as expendable parts. The other can’t help but notice that players benefit from the N.C.A.A.’s popularity as well. One side sees arbitrary circumvention and draconian use of N.C.A.A. rules as clear evidence of bad intent. The other sees unreflective and intemperate efforts at misguided do-goodism at the expense of valuable social principles.
Notions of fairness, equality, and tradition undergird the strong reactions from both sides. In fact, I’d argue that a fundamental disagreement is at the heart of this conflict. The disagreement concerns foremost the type of value that college sports primarily provide and secondly how to balance the legitimate competing interests that these values embody.
To college athletes, college sports provide the same type of value that businesses provide. The analogy comes very easily: Just as a company sells goods and services to consumers who are more or less willing to buy the products based on their durability, functionality, and practicality, the N.C.A.A. sells football and basketball to consumers who are more or less willing to watch based on the skill of the players and excitement of the games. It’s basic economics, and the players are the labor force for the N.C.A.A. This already elucidates where the NU players were coming from and why the plaintiff-class felt justified suing the N.C.A.A. It’s a basic idea that workers get paid for the value they create.
But this recent insight into how college athletes understand the value of college sports takes us even further. It reveals the basic interest that these players aim to secure through their enormous efforts. It’s the same interest that motivated labor movements a century ago and that inspires workers from Seattle to New York to fight for 15: An individual’s right to compensation for their efforts; a right to freedom from exploitation; a right to substantive recognition for work. The players don’t think of themselves as misguided do-gooders. They’re labor leaders, fighting for the liberal American dream.
And at this point, analogizing between robber barons and the N.C.A.A. seems so tempting and apt, because the CSE has ballooned its profits from the players’ success. But to the CSE, this comparison seems absurd and unfair. Yes, they’ve made a lot of money. Yes, the money comes from college sports. But that’s not really why college sports matter. College sports matter because D1 football and basketball bring a community together and help community members cultivate critical virtues.
We should not dismiss this value as soft and abstract. In fact, it’s critical if we want to live in anything resembling a community at all – just imagine for a moment how shallow and dull life would be if it lacked anything to get excited about—if there was nothing greater than your own private interests to spring you to action. In America, professional sports partially fulfill this role. Thus, for the CSE, challenges to the established system threaten the building blocks of communities across America. The CSE doesn’t have bad intent. It’s desperately trying to protect the sanctity of American communities and to ensure that one of the few remaining symbols in modern society that isn’t already demystified remains intact.
I hope that by now the true debate is clear: A conflict between legitimate interests in tension with one another. The players protect a basic liberty interest in just compensation and recognition, while the CSE protects a basic social interest in the stability of community. From hereon, the object of the inquiry should be to balance these interests as best we can, looking always to achieve justice.
The N.L.R.B. and 9th Cir holdings illustrate the current approach: a balancing that strongly favors the CSE. But over time, I suspect that this will shift. Life has a funny way of finding meaning where we once thought it could never be, and courts will slowly but surely discover that the CSE’s caution is not necessary. People will still watch college football if we call the players employees. They’ll probably still love the games if deferred pay becomes available. More importantly, shifting the balance is the right thing. These young men have devoted their lives to this game and these teams, and they deserve better.