By: Reece Cooke*

Division I athletes are not amateurs.  Don’t be fooled by the NCAA’s designated appellation.  I believe strongly that the exploitation on the part of the NCAA of its players and the restraints that the NCAA has placed on their ability to truly brand themselves is a travesty.  NCAA athletes at the Division I (DI) level, primarily basketball and football, are a vortex of escalating and circulating revenue for the NCAA.[1]  Meaning billions of dollars in revenue streams are produced by these players and the NCAA reaps far too many of the benefits from the athlete’s efforts.[2]  The NCAA and its member institutions, for all intents and purposes, are a for-profit business amassing profits that are being produced by players, who, are being taken advantage of by—the NCAA.[3]  I will argue that the NCAA restraints placed on its players are far too restrictive and further, players, including but not necessarily limited to, the big money sports of men’s basketball and football should be compensated above and beyond scholarship(s); or at the least be able to make profits from their name or likeness being used in the form of anything from video games to signing autographs to profiting from sales of their jerseys.

The fact of the matter is that D1 college athletes should be paid in some form because they are effectively cash cows from which the NCAA and its member institutions milk away.[4]  Opponents will argue that these division one football and basketball athletes already have enough going for them in the form of stipends for food and scholarships for tuition, room, and board.[5]  That argument fails to consider the essentially full time job that these athletes have based on the hours they put into their respective sports.[6]  Additionally, the argument fails to consider that because of the hectic nature of the schedules of D1 athletes, many of them finish practices and games well after dining halls close and are forced to pay out of pocket for food and are also required to attend banquets and other events that force them to purchase suits and relevant attire that put even more of an out-of-pocket burden on them.[7]  It is undeniable that a big portion of the money universities make is because of the athletes, whether it be through the recognition the athletes bring to the school or the monetary value they bring.[8]  It is entirely unfair for universities to exploit the abilities, appearances, and worth of these athletes without them receiving any return on their image.  When you have players such as Johnny Manziel for example, being suspended for selling memorabilia with his autograph on it, but universities can sell tickets with Manziel’s face plastered all over them, then something isn’t adding up.[9]  Colleges and universities capitalize on the players’ and teams’ status and success that drives revenue through media rights and sales via merchandise and apparel.[10]  It is morally disturbing that a school can be making millions of dollars off of a player’s name and likeness when that same player can’t even accept a free water bottle.[11]

To highlight some of the benefits of paying athletes for universities, it would certainly be more of an incentive for these athletes to stay in school longer and earn their degrees if they were being paid for their services.[12]  Many student-athletes come from low income homes and backgrounds and cite financial hardships and family obligations as reasons for leaving early to the likes of the NFL and NBA to receive their big pay days.[13]  That jump is dangerous however, because when one lacks the education or structure around them to make sound decisions or investments with their money, then they end up squandering it away foolishly and by the time their careers have concluded, they have no money and no degree to show for it.  Opponents will argue that preserving the “integrity of the game” is more important than paying amateur athletes, except they forget that there is nothing “amateur” about big money D1 football and basketball but for the actual name itself, given and defined by the very entity that reaps the benefits of the athletes play.[14]  Further, from a purely equitable vantage point, athletes from DI basketball and football programs are making the money for the schools so they should be able to earn whatever their market value is, similar to the way that they are able to benefit from living in a free-market economy, as they do in every other aspect of their lives.[15]  To argue that DI student-athletes are not professionals and that it doesn’t matter how many touchdowns they score or three pointers they make is ludicrous because it ignores the fact that each of those touchdowns and each of those three pointers in fact do matter considering media outlets pay big money for the privilege of acquiring those highlights; therefore, they cannot be ignored.[16]

Other opponents reference tax plans as a “no brainer” reason to quash the idea of paying athletes, arguing that if the athletes were paid, then their payment would be subject to federal and state income taxes, unlike the scholarships they already earn, which are deductible from taxable income.[17]  Further, opponents argue that the market value for these players would not be nearly as high as many assume because there are so many alternatives in the form of other players and that paying the players would absolutely ruin the “amateur” game.[18]  It is a similar argument, I believe, to that of the reserve clause in baseball that essentially did not allow free agency in the 1970’s.  Proponents of the reserve clause argued that free agency would crumble baseball and destroy everything it stands for.[19]  That has since been abolished as Curt Flood started the toppling of that rule when he took MLB to the Supreme Court and now baseball, with free agency in place, is bringing in more revenue and seeing more popularity than ever before.[20]

 It is an easy enough system to implement to have players and universities sign something to the effect of a licensing agreement where players could be paid royalties for the use of their image, name, or likeness.[21]  This system could be implemented team by team, school by school, or the governing body of the NCAA could do it—so long as it is uniform across the board.  Also, other sports would not be affected much—if at all—and top programs wouldn’t have any more of a monopoly on top players than they already do.[22]  In fact, lesser programs would be able to compete because a program like Butler in the Big East would benefit from being able to take their resources and use monetary means to lure, maybe not a top player, but a second or third top player at a bigger school such as Villanova because they would be able to pay them like a top player at Butler as opposed to them being paid like a second or third player at a school like Villanova.[23]  This would, in effect increase competition throughout D1 NCAA basketball and football.[24]

The NCAA is a money-making factory that uses equipment in the form of players to assist their business model to go as smoothly as possible without fine tuning or properly servicing said equipment.[25]  Universities are unjustly enriched when they take a person and their abilities and make money off of them without allowing the person to use their name, abilities, and likeness to make any personal money of their own.  If a player wishes to take a few bucks for signing an autograph or get a shoe deal from Nike or Adidas, then by all means I think that is the very least in which they should be permitted to do.  On top of that, universities should be giving theses students payment for their contribution to the universities business model.  Athletes are forced to scurry off much sooner than perhaps they are ready to because they see professionals being paid to do exactly what they are doing, but they are “amateurs” (whatever that means) so they are excluded from receiving the same benefits.[26]  There is no reason to continue depriving these young adults of their just desserts.


**Staff Writer, Villanova University Sports Law Society Blog; J.D. Candidate, May 2018, Villanova University Charles Widger School of Law.

[1] See Maurice Peebles, 7 Common Sense Reasons Why College Athletes Should be Paid (According to Jay Bilas), Deputy Editor Complex Sports (Dec. 3, 2015), http://www.complex.com/sports/2015/12/jay-bilas-interview/1 (highlighting billion-dollar industry that is division one college basketball and football for NCAA).

[2] See id. (describing tens of billions of dollars that NCAA makes through broadcasting, sponsorships and tournaments).

[3] See id. (noting this is not just small amounts of money, rather extremely vast amounts of money continuously coming in).

[4] See id. (addressing effects college basketball and football players’ prowess has on schools they represent).

[5] See Jared Walsh, Should athletes be paid to play?, Daily Utah Chron. (Oct. 20, 2016), http://college.usatoday.com/2016/10/20/should-athletes-be-paid-to-play/ (noting simple arguments against paying athletes are that they already receive tuition, room, board and other stipends that include food so what more do they need).

[6] See Dave Anderson, Top 10 Reasons College Athletes Should Be Paid, Listland, (Sept. 22, 2015), https://www.listland.com/top-10-reasons-college-athletes-should-be-paid/ (arguing DI athletes are essentially full time employees).

[7] See id. (noting some examples of many out of pocket expenses athletes are forced to shoulder which are not part of scholarships).

[8] See Walsh, supra note 5 (indicating many of these schools make more revenue off of their athletes than any other form of revenue stream they produce).

[9] See id. (citing example referencing Johnny Manziel and his first half suspension of college football game with Texas A&M for selling memorabilia with his autograph on it to fan for profit).

[10] See Anderson, supra note 6 (arguing that universities take advantage of image and status of players).

[11] See id.  (discussing absurdity of amount of money schools make off of athletes compared to what athletes make off of themselves).

[12] See id. (arguing that players jump from college to the professionals much sooner than they maybe have to because they want to earn a paycheck, however, if they were paid in college then they would be much more inclined to stay in school and earn their degree as they get paid simultaneously).

[13] See id. (giving reference to reasons why many athletes choose to leave school early to pursue a professional career in their respective sports).

[14] See Peebles, supra note 1 (highlighting that NCAA makes all of the money off “amateur” players, but everything about how NCAA is run is similar to professional leagues in terms of broadcasting, sponsorship and professional displays of best athletes on earth).

[15] See id. (highlighting that there is market value to these players and they, just like any other athlete who produces revenue for governing bodies, should be able to test out their value and see what they are worth).

[16] See Anderson, supra note 6 (stating that college athletes are not professionals and that what they do on field doesn’t change that).

[17] See John R. Thelin, Here’s Why We Shouldn’t Pay College Athletes, Money (Mar. 1, 2016), http://time.com/money/4241077/why-we-shouldnt-pay-college-athletes/ (pointing out the flawed reasoning behind not paying athletes due to their status as students)

[18] See id. (arguing because there are so many alternatives in open market for these players, value of the top prospects all the way to the bottom is going to be relatively even or low because you can find the next best option for a cheaper price and develop that athlete the way you want).

[19] See Peebles, supra note 1 (referencing reserve clause in baseball that made it possible for teams to retain rights to any player they chose after every season and keep doing so until players careers were over, essentially pigeon-holing players to one team throughout their career with no option to change clubs or test free agency).

[20] See id. (arguing once free agency was finally granted to MLB players, there was no drastic change and definitely not negative change considering how well baseball is doing today).

[21] See id. (describing how this system would not be difficult to implement because it would be simple matter of contractual negotiations).

[22] See id. (arguing other DI programs or sports would not be hindered by paying athletes because for anybody in any capacity in any position, you are paid based on the services you provide and the value you bring in, so if you have money to pay and there is value being brought in then compensation should be given, regardless of the sport; and stating there will always be those athletes who don’t play either football or basketball so programs won’t be losing out).

[23] See id. (indicating that smaller programs would gain leverage because they would be able to take whatever money the programs currently have and pay second tier plays on perennial powerhouses more money to be the number one guy at their school so competition would be raised across the division one playing fields).

[24] See id. (arguing that competition would be increased, not decreased by effects of system paying DI athletes).

[25] See Peebles, supra note 1 (discussing metaphor regarding how NCAA continuously takes advantage of players who represent these schools).

[26] See Walsh, supra note 5 (highlighting just how unfair it is that these players are those who bring in all of the revenue yet do not get compensated accordingly for their work, time, energy and effort).

 

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