The current NCAA model may be finished

The recent National Labor Relations Board memo may be the tipping point needed to start paying collegiate athletes. Olympic sports face a "Now what?" scenario.

2021 has been a turbulent year for the NCAA. In April the United States Supreme Court denied the NCAA's appeal in Alston vs.NCAA and ruled that colleges are allowed to provide athletes with additional non-cash, education related compensation like computers, study abroad opportunities, and internships. In June the NCAA lifted its restrictions — it had no real choice — on athletes earning income on their name, image, and likeness (NIL) to head off conflicts with states that had already passed legislation that would soon begin allowing it. Both Alston and the NIL issue erode the NCAA's longtime use of amateurism as its primary procompetitive tool. And, as I wrote in July, some think that Justice Kavanaugh's concurrence in Alston was signaling the Court's readiness to hear a case against mandated amateurism on antitrust grounds. By midsummer it was clear that the NCAA's ability to enforce amateurism on intercollegiate athletes is in trouble. 

By early September the Kraken was released in the form of a National Labor Relations Board (NLRB) memo that made it clear that the NLRB considers certain student-athletes as statutory employees and should be given the right to unionize. The memo addresses a 2015 representation petition where football players from Northwestern University were attempting to form a union. The opinion only applies to Division 1 FBS football players at private colleges¹ but if any private college team actually did unionize the NCAA would have little choice but to amend their regulations as they did with the NIL issue to maintain parity among teams. Their response to the memo though was remarkably substance free:

"With college sports embedded within the higher education experience, we firmly believe that college athletes are students who compete against other students, not employees who compete against other employees. NCAA member schools and conferences continue to make great strides in modernizing rules to benefit college athletes. Like other students on a college or university campus who receive scholarships, those who participate in college sports are students. Both academics and athletics are part of a total educational experience that is unique to the United States and vital to the holistic development of all who participate."
NCAA Statement on General Counsel Memo, 29 September 2021.

To date no college team has formed a union and it's not clear what would actually happen next if one did. Clearly the memo opens the door to pay-for-play, which brings the once fanciful notion of paying college athletes one step closer to reality especially when coupled with the earlier Alston opinion. Saying that they consider collegiate athletes to be students rather than employees doesn't offer any rebuttal to the NLRB memo and it gives the impression that the NCAA may be at a loss as to how to respond.

Paying athletes may help to alleviate ethical concerns over mandated amateurism, which is certainly not a small thing, but it would cause major disruption in how intercollegiate sport works. And with disruption it can't be automatically assumed that all would be well when the dust settles. The big money sports of football and basketball — those that actually bring in revenue — are really what's driving NIL, Alston, and the unionization issues so it's not unreasonable to assume that decisions would be made to comply with a new legal environment so that these sports and their related business interests would continue to flourish. Remember that it's the revenue producing sports that are driving these changes in the first place.

But what about other sports that don't make money? And how can possible athlete salaries be reconciled with Title IX regulations? Can you pay a revenue producing men's team and not pay a non-revenue producing women's team? These questions have not been answered yet.

The Board of Governors of the NCAA held a special constitutional convention in November 2021 to deal with these and other issues. Changes to the current constitution were drafted by leaders from all three divisions and discussions regarding these changes will be held in January 2022 at the NCAA convention. You can read the proposed changes here.

“This is not about tweaking the model we have now. This is about wholesale transformation so we can set a sustainable course for college sports for decades to come. We need to stay focused on the thing that matters most — helping students be as successful as they can be as both students and athletes.”
Mark Emmert, President, NCAA

Most of the news resulting from changes to the NCAA model will focus on how football players may finally get their payday, but there is a lot more at stake for the wider collegiate sport context and, as I've written about several times in this letter, all contexts in a national sport system are interrelated. Changes in one will eventually affect them all in some form.

Changes in NCAA regulations will be made to maintain major revenue from marquee sports but the future is quite uncertain for what the NCAA calls "Olympic" sports.

The hope of many athletes is to earn an athletic scholarship and compete on a college team. It doesn't matter if the athlete plays football or volleyball, runs track, or swims; they all want the same thing. Paying football or basketball players, if that's how the situation plays out, can't be done simply by shifting revenue, it's a brand new expense, which will leave less money to fund non-revenue producing sports.

Unfortunately for some Olympic sports the collegiate context is an integral part of the sports' national development scheme. And as much as we may not want to hear it or say it outloud Olympic sports have always had a sort of "add-on" feel to them in most college athletic departments. Their presence as part of a college's sport offerings is never more than tenuous. When money gets tight they are the first to experience budget cuts or even elimination. Additional financial burdens resulting from colleges having to pay certain athletes will have undesirable consequences for smaller sports.

Regardless of the feel-good narrative about how sport is part of the college experience, the fact is that intercollegiate sport is a business. As long as there is money to support it, whether by direct revenue from ticket sales or TV contracts, or from student fees, the juggernaut will roll on. When money is tight though, the athletic department must find ways to shed financial load to keep the premier sports in the public eye, to pay coaches, and now, maybe, to pay the athletes.

No one really knows how Alston, NIL, and the NLRB memo will affect amateurism but these changes represent an earthquake in collegiate sport. Over the next few years amateurism will not so much have died as it will simply have been made irrelevant. While these changes may lead to correcting an ethically wrong situation let's hope that Olympic sports are not collateral damage

1. The National Labor Relations Board does not have jurisdiction over public universities. However, the memo notes that depending on the facts in situations brought before the NLRB, public universities may also be subject to the memo’s interpretation of “student-athlete” vs. “student-employee”.