NLRB Issues Memo on Employee Status of "Student Athletes"

I have no idea how this plays out, but I am fairly confident of one thing: It (along with recent/pending court decisions) is really bad news for Mark Emmert and the NCAA 🎈🎈🎉🎉😆😆🍰🍰🌅🌅.

A couple of things:

1) my "distaste" is for Mark Emmert, in particular, and for the arrogance of the NCAA in general. As detailed in an article from 2015 in The Daily Beast, the NCAA became something of a "runaway train" in the Sandusky matter, and Emmert was the "runaway conductor" seeking to establish a new "tough enforcement cop" image for  the NCAA -- jurisdiction and NCAA procedures be damned.  Circumstantial evidence points to Emmert wanting to make a statement that the NCAA was still relevant, even in a time when power and influence (and $$$$$)  were clearly devolving to the Power 5.  I think that was abysmal leadership by Emmert.  A long series of NCAA losses in court -- on  issues that could have been and should have been addressed earlier and with more nuance (this recent one said the NCAA cannot impose caps on education-related benefits schools provide to their athletes because such limits violate antitrust law) point to the failure by NCAA leadership to get in front of changes that were almost certainly inevitable in some way, but could have been managed if addressed more thoughtfully.  And that issue-management should have included educating themselves and the membership to what was at stake, and the very real downsides if the NCAA continued to dig in its heels on so many issues.

2) For me, the regulation of college athletics is only intrinsically difficult to address if you want to restrict the ability of members and boosters and corporations to pay benefits/compensation to recruits and "student athletes" and whether you can pay them to come to your school (and I say this as a former college athlete at Penn -- which, even though it did not give athletic scholarships, was governed by the same rules as the NCAA, and made every athlete sign what the coaches gleefully referred to as the "Ironclad" -- basically giving away all of the rights you would have as a student in any other college endeavor -- be it orchestra, jazz club, drama club, debate society or whatever.  If you didn't sign, you couldn't eat at the training table, practice with the team, use the training facilities, or compete.)

What makes the NCAA regulations so byzantine and complex are 1) the tortured nature of the arguments about why "student athletes" (a term coined in 1964 by Walter Byers, the first-ever executive director of the NCAA, to counter attempts to require universities to pay workers' compensation) should not be paid and should not have the same rights as any other student -- to earn money from their skills, and to transfer to another college or university without having to stop (for some specified period of time) engaging in their chosen activity); and 2) the fact that the NCAA membership consists of several different groups of members with widely differing views of what college athletics should look like, whether recruits and "student-athletes" should be able to be paid, and how much, and the importance (or lack thereof) of academics in the college athletic endeavor.

Let's also be honest about the origins of the notion of amateurism, which date back to the 19th Century.  This quote, from For Love or Money: A History of Amateurism in Olympic Sports is particularly apt:

You and I may well disagree about the need for NCAA regulation (or the nature/presence/absence/merit of "amateurism" in college sports).  Several on this Forum have argued that the NCAA has only done what its member institutions wanted it to do.  I think that is true with respect to regulation of "benefits" and recruiting (the members have, I believe, wanted to keep costs down by restricting how much "student athletes" can be paid and receive as benefits, by restricting the amounts (cash and/or other benefits) that can be "paid" or given to recruits to attempt to induce them to enroll in a particular school, and by severely restricting the freedom of movement of "student-athletes" from one "employer" to another).  But bit-by-bit those restrictions have been overturned through legal challenges -- making the role of (even the need for) the NCAA uncertain, at best.

The Supreme Court's recent decision in Alston v. NCAA  will, almost certainly, turn college athletics upside down.  And it may well be bad (or even very bad) for college sports in general, or for non-revenue sports like NCAA women's volleyball, and for schools that don't have the financial wherewithal to compete in the new "Anything Goes" (or close to it) world of college athletics. But the notion that NCAA regulations relating to compensation and recruiting benefits had to be complex is true only if you accept the premise that compensation/benefits/ for "student athletes" had to be limited and controlled.

Certain regulations relating to recruitment are arguably a different matter. Parents and students have a legitimate interest in not being hounded by college recruiters from kindergarten on.  But once you eliminate prohibitions against paying athletes (or recruits), a lot of the recruiting issues melt away.  Again, this may be terrible for college athletics as we know them now (or for subsets of non-revenue sports, or for subsets of schools without access to big-money boosters).  That remains to be seen.  It's worth looking at the Ivy model as a viable alternative for schools that want sports programs but don't want to compete (or are unable to compete) against the big-money frenzy that I suspect is going to continue to grow.  I know from personal experience that world class athletes (not me, but a few teammates) were able to perform at the highest level, while also excelling at an academically rigorous Ivy League school.  Nonetheless, we would have appreciated the opportunity to be paid for our NILs, and to transfer without losing elibility.  That pesky "Ironclad" precluded all that.  For the most part, the regulations were not there to benefit the "student-athlete," but rather the institutions (and the slippery concept of "competitive balance.")

I referenced the Ivy League only because it's what I experienced, and because it is often invoked as an alternative model.  I certainly didn't mean to suggest superiority to any particular school -- certainly not Penn State -- nor to suggest that the Ivy sports paradigm is without flaws, and to the extent I came across as doing so, let me state for the record, that was not my intention (nor is it what I believe).  My point was that athletes can compete in college at a high level outside of the big-time program framework, and succeed as students as well.  There are club teams at some schools (I believe NYU and MIT are examples) for which the schools provide little or no support -- of any kind.  The athletes certainly aren't getting the level of training/coaching they would at a program like Penn State, but they are avenues for athletes to continue to compete after high school.  I can't speak to the example you mention, but from your description, it doesn't sound good at all.