The NCAA Is Losing Its Fight To Keep Exploiting College Athletes

When the men’s basketball Final Four tips off Saturday in Minneapolis, the NCAA’s biggest and most lucrative event will proceed as it normally does: the athletes on the floor for Virginia and Auburn, Michigan State and Texas Tech, will play games that generate hundreds of millions of dollars in total revenue for their schools, the NCAA and broadcast companies. The coaches and athletic directors, TV executives and NCAA suits will share in the riches. But athletes themselves still won’t receive their fair share ― and thanks to a recent federal court decision, that won’t change in the immediate future.

If the goal was to tear down the NCAA’s amateur sports cartel completely, Judge Claudia Wilken’s March ruling in a landmark lawsuit against the NCAA was by any measure a disappointment.

Wilken, a judge in the Northern District of California who has spent nearly a decade hearing such lawsuits from former college athletes against the NCAA, once again found that the college sports behemoth’s restrictions on athlete compensation violate federal antitrust laws. More than that, she excoriated the amateur system — which artificially caps the amount universities can pay athletes in exchange for their labor — as a meaningless, unjustifiable sham.

“The rules that permit, limit or forbid student-athlete compensation and benefits do not follow any coherent definition of amateurism,” Wilken said.

And yet, for as much as Wilken’s scathing 104-page decision agreed with the arguments of the star attorneys representing the latest group of athletes to sue the NCAA, she stopped short of delivering the deathblow they sought. Wilken did not remove the cap on compensation in a way that would have forced schools to offer players something akin to salaries. Instead, she ruled only that universities could pay players additional compensation related to their education expenses and achievements. 

Proponents of better compensation and labor rights for college athletes have hammered the NCAA on numerous fronts over the last decade, with federal lawsuits, attempts to unionize, legislation in statehouses and Congress, and new leagues that aim to compete for top-tier athletes by paying them more than the NCAA allows. Progress, though, has come only in small increments like Wilken’s ruling, as judges and government bodies have validated their arguments even as they refuse to throw the knockout punch.

The NCAA celebrated Wilken’s ruling as a victory. But to many of those advocates, it was yet another indication that the question about college sports is no longer whether the NCAA’s archaic amateur system will collapse. It’s how, and when, it finally will.

“I don’t think we’re at a tipping point yet,” said Sen. Chris Murphy (D-Conn.), who released a report that called for paying major college athletes last week. “But it’s coming.”

A federal judge ruled in March that the NCAA is in violation of antitrust law, but stopped short of tearing down the system as a whole. 

The Courts

Wilken’s decision didn’t go as far as labor lawyer Jeffrey Kessler wanted it to when he sued the NCAA in 2014 on behalf of former Clemson University football player Martin Jenkins. (The case, a class action, was later consolidated with another lawsuit brought by former West Virginia University football player Shawne Alston, into the suit Wilken ruled on in March.) Still, he believes that Wilken provided yet another body blow to the NCAA and an amateur system.

Wilken’s ruling, if it stands, could provide athletes with thousands of dollars in additional compensation over the course of their collegiate careers, Kessler said.

“It’s not everything we’d hope for,” he said. “But it is real progress in terms of helping these students.”

Wilken previously found the NCAA in violation of antitrust law in 2014, when she ruled in favor of athletes in a case brought by former UCLA basketball star Ed O’Bannon.

The NCAA will likely appeal her judgment, just as it did in the O’Bannon case. The NCAA won a partial victory then, when an appeals court upheld Wilken’s ruling on antitrust grounds but struck down her mandate that Division I programs provide $5,000 in additional compensation related to the use of their names, images and likenesses.

There are no more major cases against the NCAA proceeding currently, but Wilken has slowly eroded some of the NCAA’s favorite arguments and restrictions. Her fact-based broadside against “amateurism” may have paved the way for other judges to go even farther in future cases.

Kessler, who has won major victories on behalf of athletes in the NBA, NFL and MLB during his career, wouldn’t comment on the potential for further legal action. But he didn’t close the door, either: “These issues will continue to be considered by the courts” in “other possible jurisdictions,” he said.

Sen. Chris Murphy (D-Conn.) released a report in April that calls on the NCAA to fairly compensate major college athletes. "I

Sen. Chris Murphy (D-Conn.) released a report in April that calls on the NCAA to fairly compensate major college athletes. “It’s a civil rights issue,” Murphy said.

A Legislative Fix

The NCAA’s amateur system has also drawn increasing attention from federal and state lawmakers from both the Republican and Democratic parties.

A Republican lawmaker in Washington introduced legislation this January that would challenge NCAA rules by letting athletes at the state’s top universities receive compensation in exchange for endorsements from local businesses or companies like Nike, which sponsors both the University of Washington and Washington State University’s athletic programs.

Lawmakers have introduced similar bills in California, Maryland and North Carolina.

In Congress, meanwhile, Reps. Mark Walker (R-N.C.) and Cedric Richmond (D-La.) introduced a bill in March that would let athletes profit from the use of their names, images and likenesses ― essentially, from endorsements and the NCAA’s use of athletes for marketing purposes.

The athletes, who are predominantly African American, are getting almost nothing. That makes this a civil rights issue.
Sen. Chris Murphy (D-Conn.)

Last week, Murphy, the Connecticut senator, issued his own report calling on the NCAA to provide better compensation to major sport athletes. In an interview with HuffPost, Murphy said that he’d been studying the issue for years, but decided to “get off the couch” when Duke basketball player Zion Williamson ― the projected top overall pick in this summer’s NBA Draft ― suffered a knee injury after his Nike shoe exploded during a game. Nike’s stock briefly dropped after the injury, and “the idea that one amateur athlete could tank a major American company’s market value by a billion dollars would seem to suggest that the industry is probably a little out of whack,” Murphy said.

The report also highlighted the racial disparities in the current collegiate model, in which a majority of the athletes in major college basketball and football ― the two sports that generate the most revenue ― are black.

“The coaches are mainly white. The athletic directors are mainly white. The sports company executives are mainly white. They’re all making money,” Murphy said. “The athletes, who are predominantly African American, are getting almost nothing. That makes this a civil rights issue.”

Members of Congress have previously advocated on behalf of Northwestern University football players’ efforts to unionize, and members of the Congressional Black Caucus have highlighted the racial dynamics of college sports in the past. Murphy said that there is growing concern over the structure of the NCAA among lawmakers in both parties in Washington.

But for now, he stopped short of introducing legislation targeting the organization.

“I’d like the NCAA to recognize the storm that’s brewing, and start a discussion about the options to give student-athletes, at least those playing the big-time sports, a share of the profits,” Murphy said. “They are not of a mind right now to move with big reforms on their own. That’s why we’ve got to create some public pressure.”

"The coaches are mainly white. The athletic directors are mainly white. The sports company executives are mainly white," Sen.

“The coaches are mainly white. The athletic directors are mainly white. The sports company executives are mainly white,” Sen. Chris Murphy said. “They’re all making money. The athletes, who are predominantly African American, are getting almost nothing.”

The Free Market

Wilken’s limited ruling made it clear that federal courts won’t likely deliver the wholesale change Kessler and other athlete advocates sought through lawsuits anytime soon. The NCAA, meanwhile, will surely try to halt any legislation targeting its amateurism rules with its army of lobbyists. And the one government body that could directly challenge the NCAA ― the Department of Justice ― has inexplicably chosen to defend the status quo instead of pursuing the sort of antitrust claims against it that Wilken’s rulings suggest could be successful.

That means the most imminent and dangerous threat facing the NCAA today could come not from regulators or lawmakers but from the free market itself ― in the form of another league or organization that tries to beat the NCAA at its own game.

“The free market is what is ultimately going to force the NCAA to change, or entirely bring it down,” said Ricky Volante, the chief executive of the Historical Basketball League.

The HBL, as the league is known, is one such effort: With plans to launch in 2020, it wants to pay basketball players salaries in addition to athletic scholarships.

Don Yee, a longtime sports agent who represented New England Patriots quarterback Tom Brady, plans to launch a similar league for football players next year. The Pacific Pro League wants to target top college football recruits who are too young to enter the NFL Draft, using the sort of salaries the NCAA doesn’t allow as its lure. 

Once someone figures it out, we’re planning the funeral for the NCAA.

Startup leagues taking on entrenched businesses are always a longshot, as the collapse of the Alliance of American Football. But few of those leagues have been able to match the salaries on offer from their pro counterparts. The NCAA doesn’t present that problem: Its refusal to pay star athletes what they’re worth gives efforts like the HBL or Pacific Pro League a distinct advantage.

“The NCAA is very susceptible,” Volante said. “It’s very easy to outbid their offers right now. And that’s what makes it such a fascinating situation.”

This year’s NCAA Tournament has only brought more attention to the plight of top-tier college athletes, and the NCAA’s treatment of them. Current and former college stars roundly ridiculed an NCAA-created video that promoted a rosy view of a “day in the life” of a college athlete before the tournament. University of Iowa basketball player Jordan Bohannon directly called on the NCAA to give athletes the right to profit from their names and images. Dick Vitale, the ESPN broadcaster and de facto voice of college basketball, told Esquire in March that it is time to pay college basketball players.

“You have these various factions that are trying to accomplish the same thing but don’t necessarily see eye to eye on how to get from A to B,” Volante said of the sundry of efforts targeting the current amateur model. “Once someone figures it out, we’re planning the funeral for the NCAA.” 

CORRECTION: A previous version of this story misstated the title of the Alliance of American Football. It also previously called Claudia Wilken a judge on the Ninth Circuit instead of in the Northern District of California. Additionally, it said that HBL planned to partner primarily with HBCU; that’s no longer their plan. 

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