Issues to Watch

The Battle to Pay College Athletes: Why the Solution Lies in the Legislature


Taylor Kitzmiller*

I.  The Argument to Pay College Athletes

Picture this, a worker dedicating countless hours each week to perfect their craft and generating millions of dollars for their employer all the while, laying their health on the line.  People from all over the country tune in to watch this worker perform their skills on the biggest stage.  Their employer’s revenue from television deals, ticket sales, and merchandise is fueled solely by the worker’s performance; however, this worker is never compensated.  This unthinkably unbalanced business model depicts the relationship between the National Collegiate Athletic Association (NCAA) and college athletes. Sarah Lytal, Comment, Ending the Amateurism Façade: Pay College Athletes, 9 Hous. L. Rev.: Off the Rec. Articles 158, 162 (2019).

The NCAA was created in 1906 to provide safety standards for college athletics.  See id. at 163.  However, after years of commercialization, college athletics have turned into a cash cow with the NCAA reaping the financial benefits.  Alex Kirshner, Here’s How the NCAA Generated a Billion Dollars in 2017, SBNATION (Mar. 8, 2018, 7:00 AM), https://www.sbnation.com/2018/3/8/17092300/ncaa-revenues-financial-statement-2017.  In 2016, the NCAA agreed to an extension of its television contract with Turner Broadcasting, which is projected to result in $10.8 billion of revenue over fourteen years.  See id.  In 2017 alone, the NCAA generated revenue in excess of one billion dollars through its compilation of television deals, ticket sales, and merchandise.  See id.  Advocates for paying college athletes point to these eye-popping numbers to argue that there is plenty of money to give college athletes a small piece of the financial pie.  Lytal, supra at 161.

In the past decade, advocates of the pay-for-play movement have brought multiple judicial challenges to the NCAA’s ban on college athlete compensation.  David J. Berri, Paying NCAA Athletes, 26 Marq. Sports L. Rev. 479, 480 (2016).  In these judicial challenges, advocates have mainly accused the NCAA of violating the Sherman Antitrust Act and other labor laws by refusing to compensate college athletes for their performance.  See id.  However, the NCAA has consistently prevailed over these claims, making the goal of compensating college athletes seemingly unattainable.  See id.

Bleak as the movement to attain compensation for college athletes may seem, there is hope on the horizon.  Advocates need to approach this issue from a different angle. The key to a successful challenge against the NCAA’s ban is hidden not in the courts but rather in the legislature.  A bill passed by a state’s legislature would provide multiple legal safeguards to prohibit the NCAA from enforcing its current ban on compensating athletes and to ensure that college athletes are properly compensated for their performance.  Marc Edelman, Why NCAA Likely Can’t Keep California Schools from Allowing Athletes to Profit from Their Names and Likenesses, Forbes (June 25, 2019, 11:10 AM), https://www.forbes.com/sites/marcedelman/2019/06/25/ncaa-cant-legally-ban-california-schools-for-allowing-athletes-to-profit-from-their-names-images-and-likenesses/#137fd0d5273f.

II.  The NCAA’s Historic Dominance in the Courts

The movement to attain compensation for college athletes mainly depends upon whether the athletes are defined as employees of the NCAA.  Lytal, supra at 175.  If college athletes are legally defined as employees, they would gain access to labor law protections and would secure their right to compensation for their performance.  See id.  However, despite several efforts to gain employment status, the courts have upheld the “amateurism” rules of the NCAA, which bar all college athletes from receiving compensation.  See id. at 177.

One of the first major challenges to the NCAA’s amateurism rules arose in Waldrep v. Texas Employers Insurance Ass’n, 21 S.W.3d 692, 693 (Tex. App. 2000).  The issue in Waldrep revolved around a Texas Christian University (TCU) football player, Kent Waldrep, who sustained severe injuries, which included paralysis, while competing.  See id. at 696.  Waldrep argued that his signed letter of intent and financial aid agreement made him an employee of TCU, and thus he was eligible to receive workers’ compensation for the injuries he sustained.  See id.  The court ruled that both Waldrep and TCU understood that the rules of the NCAA applied to their relationship.  See id. at 700–01.  The NCAA’s rules explicitly state that athletes are not considered employees; therefore, Waldrep was barred from receiving workers’ compensation.  See id. at 701.  This result has been mirrored by several other holdings throughout the years, which further discourages the idea that college athletes will ever gain the benefits of employment through judicial challenges.  Patrick Vint, Ranking the NCAA’s 5 Biggest Legal Battles, from Least to Most Threatening, SBNATION (Mar. 20, 2014, 9:00 AM), https://www.sbnation.com/college-football/2014/3/20/5528032/ncaa-lawsuits-obannon-kessler-union.

Even in the rare cases of judicial success over the NCAA, the courts have created limitations that bog down the advancement of the pay-for-play concept.  See id.  In O’Bannon v. NCAA, a group of college athletes claimed the NCAA violated the Sherman Antitrust Act by refusing to compensate players for the use of their name, image, and likeness.  O’Bannon v. NCAA, 802 F.3d 1049, 1052 (9th Cir. 2015).  The court found that the NCAA’s ban on an athlete’s ability to be compensated for their name, image, and likeness violated antitrust laws.  See id. at 1068.  Originally, the O’Bannon decision seemed like a major win for college athletes.  See id. at 1073.  However, the court placed limitations on the remedies that college athletes can receive.  See id. at 1078.  The court held that college athletes were injured in fact; but, they could only receive educational compensation up to the cost of attendance.  See id.  Therefore, even though athletes can obtain compensation for their education, they may not receive additional financial benefits for any noneducational uses.  See id.  The O’Bannon decision is considered a success in the long fight against the NCAA; yet, it still fails to secure the compensation that college athletes rightfully deserve.  Vint, supra.

III.  A California Act Provides a New Route to Challenge the NCAA

Years of failures in the courts have pressured pay-for-play advocates to rethink their strategy.  Edelman, supra.  It seems that advocates of compensating college athletes have shifted their focus to California’s Fair Pay to Play Act (the Act).  See id.  Beginning on January 1, 2023, the Act will allow college athletes in California to be compensated for the use of their name, image, and likeness—a concept that the bylaws of the NCAA currently prohibits.  Fair Pay to Play Act Gives College Athletes the Right to Profit from Use of Their Name, Image and Likeness—California—Wage Payment (2019), Westlaw Labor & Empl. L. ¶ 19816D (C.C.H.).

There are two distinct advantages of challenging the NCAA through state legislation.  Edelman, supra.  The first advantage is that “a reasonable interpretation of Section 1 of the Sherman Act would likely conclude it be both an illegal form of wage fixing and an illegal concerted refusal to deal if the NCAA were to ban California colleges from post-season tournaments for complying with state laws.”  Id.  Second, any attempt by the NCAA to punish California schools for following this law would “violate the implied common law rights of good faith and fair dealing that exist in every contract.  This is because the NCAA, as a monopolist trade association, is punishing several of its private members for doing exactly what their state law requires them to do.”  Id.

IV.  Conclusion

The protections of antitrust laws and state common-right laws make attacking the NCAA through the legislature far more advantageous than through the courts.  See id.  , advocates of the pay-for-play movement are beginning to see a snowball effect occur.  Tyler Tynes, The Ripple Effects of California’s ‘Fair Pay to Play’ Act, RINGER (Oct. 11, 2019, 6:55 AM), https://www.theringer.com/2019/10/11/20909171/alifornia-sb-206-ncaa-pay-college-players.  Advocates throughout the country will continue to push other states to pass similar bills that mirror the Act.  See id.  Pressure will mount on the NCAA if more states successfully pass similar bills, causing the NCAA to reconsider amateurism rules and finally compensate college athletes for their performance.

*Taylor is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for the Law Review.  Taylor is a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society.  This past summer, Taylor studied comparative human and civil rights abroad in Aberdeen, Scotland.

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