I recently wrote about burgeoning health and safety concerns for college athletes in light of the continuing pandemic. As the much-anticipated March Madness season rolls in, the COVID pandemic has underscored the long-time debate about whether college athletes should be granted the protections and benefits of an employment relationship.
Closely tied to that debate is the issue of student-athlete compensation: given the sweat equity these athletes expend in taking their schools to national sports glory, should they be paid for their efforts?
While the NCAA has fought tooth-and-nail to prevent student compensation, more and more legislators are pushing to change this convention.
The lack of legal pay for college students has been framed, in recent years, as a civil rights issue. The 14th Amendment prohibits the government from depriving citizens of life, liberty, and property without due process of law, a principle that the U.S. Supreme Court has historically applied quite broadly. However, in the 1988 case National Collegiate Athletic Association v. Tarkanian, the Court ruled that the NCAA is not a governmental entity and as such, is not subject to the constitutional due process requirement.
But the issue of whether athletes should enjoy the fruits of their labor is far from settled. Even though the Court has labeled the NCAA a private actor, there is some nuance to this issue: the NCAA operates at state institutions where students receive federal and state funds to play. What that means is that not allowing student-athletes to collect some form of compensation for their efforts could result in a constitutional violation.
The NCAA has tried to sidestep this issue by claiming that student-athletes are students, not employees, but with the amount of money these students make for their universities, it is clear that that position is becoming more debatable. If students are treated like employees, they would be entitled to a full suite of rights guaranteed by Title VII, which, above all, would ensure equity in compensation. That would mean a seismic shift for the college sports industry, which is undoubtedly reluctant to accept that change. In fact, for the past few months, the NCAA has fought for an antitrust exemption which, If granted, would allow it to continue impeding student-athletes from making money through sports.
Constitutional concerns aside, practical consequences flow from the denial of student-athlete compensation. A 2019 study conducted by the National College Players Association found that 86 percent of college athletes live below the federal poverty line. Due to their commitment to practices, while striving to maintain their grades, student-athletes rarely have time to work a job outside of college. This offers them little chance of making money while attending their universities, which can entrench them in massive debt when they graduate. This evidence seems crueler when you juxtapose it with the staggering wealth of NCAA coaches. Over the past decade, the lowest-paid head coach in any major NCAA football conference made upwards of $1.5 million per year. But even though they put just as much time and effort in, players aren’t paid even a fraction of this amount.
Legislation on the Rise
While the NCAA could freely use the players' likenesses to create posters and promotional videos, the players themselves have historically been foreclosed from earning any of the money that the advertisem*nts generated.
But despite objections by those in the industry, change is afoot. Sponsored by California Governor Gavin Newsome and subsequently passed in 2019, the Fair Pay to Play Act would allow players to earn money through sponsorship and endorsem*nts while maintaining academic eligibility in the State of California.
This Act has catalyzed more widespread change. In 2020, U.S. Senator Marco Rubio introduced the Fairness in Collegiate Athletics Act, a measure that would require the NCAA to allow student-athletes to be compensated for NIL (name, image, and likeness) compensation by third parties. The Act seeks to level the playing field by allowing student-athletes to seek professional representation while requiring the NCAA to protect students from nefarious actors who would otherwise take advantage of their time and talent.
In short, the Act would require the NCAA, or similar intercollegiate athletic associations, to implement rules for student-athletes to be compensated for their NIL by third parties by June 30, 2021. The NCAA must set forth processes that, at a minimum:
- Allow student-athletes to obtain professional representation in matters related to NIL compensation, subject to protections under the Sports Agent Responsibility and Trust Act;
- Require student disclosure, at the time of agreement and payment, to both the university and the NCAA in a clear, uniform way;
- Preserve amateur status;
- Ensure appropriate recruitment of prospective student-athletes;
- Prevent nefarious “boosters” from recruiting or retaining students;
- Authorize FTC enforcement under unfair or deceptive practices statutes;
- Provide a safe harbor for implementing policies set forth; and
- Provide preemption of state laws based on NIL compensation for student-athletes.
Then in December, Senators Cory Booker (D-NJ) and Richard Blumenthal (D-CT) introduced the College Athletics Bill of Rights.“I know firsthand that college sports can open doors of opportunity that most young people never knew existed—but the unfortunate reality is that the NCAA is also exploiting college athletes for financial gain, and disproportionately exploiting Black athletes who are over-represented in the revenue generating sports. Under its current operation, the NCAA is preventing college athletes from earning any meaningful compensation and failing to keep the athletes under its charge healthy and safe, and that needs to change,” said Senator Booker. “The College Athletes Bill of Rights will set a new baseline standard to expand protections and opportunities for all college athletes by providing fair and equitable compensation, ensure comprehensive health and safety standards, and improve education outcomes for college athletes. College athletes deserve better, they deserve justice, and they deserve to share in what they help create.” After decades of NCAA control over the purse strings, bills like this could open the door for increased flexibility in the collegiate sports world.
For now, the future of pay in college athletics is uncertain but what we do know is that despite clear objections from those who profit off the backs of student-athletes, reform is on the horizon.
Anna Davis is a master's candidate in the Human Resources Management program at Georgetown University, an employment law attorney, and a Carolina basketball fan.
