Congress loves to hold hearings on how American universities might pay their athletes in the future. The Legislature has held an astonishing 10 hearings on the subject over the past five years, with the most recent taking place on Tuesday. These events are somehow even less interesting than they seem, largely because the NCAA’s arguments are entirely recycled. They always do exactly this: First, the association – which acts solely on behalf of the schools – implores Congressional intervention. (You see, 150 years alone wasn’t enough time to develop a convincing player compensation system.) Then someone in Congress apes the extremely fragile system and already-unanimously-rejected-at-the-Supreme-Court believe that interest in college sports has declined or will decline if/because players can now take money from third parties. (This week, the last aperitif was Senator Joe Manchina very rich man who has never met a young American. thinks he should have more money. Senator Mitt Romney has also expressed concern in the past about some players having nicer cars than others. And Southeast Conference Commissioner Greg Sankey, in a media interview, I also had a taste.) Ultimately, nothing happens. Another hearing takes place six months later. Wash, rinse and repeat.
Senator Ted Cruz believes there is a 60 percent chance that Congress will soon pass a bill governing how college athlete compensation works. You can be your own judge of the plausibility of this statement given the current situation in the House of Representatives, and whether Cruz is demagoguery or has sincere faith in a bipartisan breakthrough. But if he misinterprets the political environment, that is not his only mistake. Cruz does not have a critical understanding of how college sports work.
The telling comes in the way Cruz talks about a possibility that many college administrators (and the NCAA itself) view as a bogeyman: the concept that athletes would become employees of their schools rather than maintain their hybrid role of student-athlete-unpaid worker. “It would mean that if suddenly you have a receiver who drops a bunch of passes, you can get fired and lose your scholarship,” Cruz said during this latest hearing, while listing other potential bad outcomes.
Should college athletes be employees of their school? The simplest answer is that it probably depends, and it’s the only position that even progressive reformers have come down on in recent years. Ohio State football players are different from the rowers of a Division III team in a way that directly weighs on traditional tests of whether a person is an employee or not. But Cruz’s misunderstanding isn’t about the law. These are the day-to-day realities of college sports, especially at its highest and most cut-throat levels. Cruz warns of a world in which a school can pull a receiver if he drops a bunch of passes, but he ignores that we already live in that world, simply without the protections that wide receiver would have if he were an employee . Cruz’s opposition may be right, but he is throwing darts blindly.
The status of sports employee is tricky. I’ve been covering athlete compensation and the economics of college sports for about a decade. I’ve interviewed athletes, labor lawyers and union organizers about how unionization of players could one day appear. I reported on power dynamics this makes it extremely difficult, but also powerful, for athletes to mount resistance when their schools let them down. The general counsel for the National Labor Relations Board cited several stories I wrote in her 2021 memorandum in which she opined that some athletes should be treated as employees, and then we talked about it.
But I’m not sure, one way or the other, if employee-athlete status would be a good thing. A practical argument against this is that it could create a visa nightmare for international students, which are rare in football but common in basketball and a handful of other college sports. Another reason is that NCAA President Charlie Baker is probably not wrong when he talks about athletes I do not want it. Having a capitalized job comes with responsibilities (and accountants), and college athletes already have plenty of that during a short time when they’d like to have fun, be young and fit, and soak up their collegiate experiences. Needless to say, their schools and the NCAA have done nothing to educate them about some of the benefits of employment. Some athletes, however, have already demonstrated that they are aware of these benefits and have decided for themselves that they want them. Dartmouth men’s basketball players are I’m trying to get the NLRB to rule that they are employees with the right to form a union. The board of directors, in the coming months, will look into this matter.
But the mechanism of an NLRB decision would not be to instantly turn all college athletes into employees and budding union organizers, as Jennifer Abruzzo, the board’s very pro-player general counsel, explained to me. . The NLRB does not have jurisdiction over public universities, which play most major football games. (Also, Abruzzo does not decide advice case. She gives her opinion on them and directs the law enforcement personnel. A real panel makes the decisions, usually taking into account the opinion of a general counsel.) Other legal, legislative and regulatory agencies – perhaps federal, perhaps state – would still have to evaluate the question.
That’s why it’s so important that when powerful agencies determine whether athletes are employees, they do so with more knowledge about college sports than Cruz has or claims to have.
College athletes can already be and are routinely fired for athletic underperformance. In the industry, coaches and player personnel generally refer to this as “a second round.” Sometimes they might describe this as “treating” a player. A football team receives 85 scholarships, and every program has players who are eventually realized aren’t good enough. Coaches frequently encouraging or pressuring these players to enter the NCAA transfer portal or leave the team, thereby opening a scholarship spot.
The practice is as integral to modern college football as marching bands or tailgates. The NCAA even codifies it in certain circumstances: in 2017, it was adopted a ruler which allows newly hired football coaches to remove players from their roster, freeing up a scholarship spot, provided the university continues to honor the scholarship and let the former player take classes. Deion Sanders, currently the most famous college coach who ever lived, just kicked out almost the entire Colorado roster so he could replace those players with better ones. These players haven’t done anything wrong other than going 1-11 last year. If they had guaranteed contracts like their coaches, they would be entitled to a nice payout if they were fired for not being very good at football. If they took ownership of their employee status and formed unions, they could negotiate uniform severance terms. Even if they didn’t, they would have special rights as employees, including that their bosses would have to treat them as they would anyone else under the school’s employment policies. Athletes, for now, have no such rights.
There is no way to fairly define the future of college athlete compensation if those who make laws and decide court cases don’t understand how this incredibly strange ecosystem works. Just as an octogenarian who asked Mark Zuckerberg how Facebook making money without users paying to use it was not a good candidate to effectively regulate Big Tech, a senator who doesn’t understand that college athletes can already get fired in everything but their name is not positioned. to develop a good policy regarding their work structure. Of course, knowledge of college sports is not a panacea. Alabama Sen. Tommy Tuberville has tons of them, having coached football at a handful of schools over a long and slightly above-average career, and his top priority over his former profession seems to be prevent athletes from sharing directly in television revenues generated by their sports. After all, it’s possible that a world of athlete revenue sharing will mean less money for massive, heavily guaranteed contracts for coaches like Tuberville.)
None of this means that employment status is a silver bullet that can carry college sports through a prosperous next century. Jobs bring new complications, and if athletes became employed and then organized, they could find themselves at the bargaining table. Rosters change quickly, athletes are busy and their schools and coaches could pose various obstacles to effective negotiations.
A cynical point of view would be that these difficulties are the reason why Notre-Dame athletic director think about collective bargaining, via a new structure which does not include employment, that might be a good idea. A less cynical view would have at least this administrator attempt to resolve a controversial and so far intractable problem. At least he understands the ground he walks on. Cruz, Manchin and a significant part of the US Congress are doing it not.
