Payoff Series

Craig OuthierJanuary 1, 2016
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College football’s biggest, richest game is coming to the Valley – and with it,  the long-burning question of whether college athletes should be paid. 

Arizona State University senior wide receiver Gary Chambers will not be playing in college football’s biggest game when it comes to the Valley on January 11 – the Sun Devils’ utterly ordinary 6-6 record in 2015 made certain of that – but he’ll be watching. Partly out of occupational interest. Partly because he’s a football fan. And partly, like many of us, to behold the spectacle of it all.

Organizers estimate the 2016 College Football Playoff National Championship will funnel $500 million into the local economy. ESPN will hand over another $470 million to the NCAA for the rights to broadcast the game. And $50 million will find its way to the Pac-12 conference, despite the fact no Pac-12 team will be playing in it.

Chambers shakes his head at the irony. “Billions of dollars go into NCAA sports and the players don’t see any of it,” the lithe pass-catcher says, helmet in hand, after a weekday morning practice outside the Verde Dickey Dome. “But at the end of the day, I think it’s going to happen.”

Inevitably, the championship game will bring not just the nation’s two best teams to University of Phoenix Stadium, but the long-nagging question of whether student-athletes in high-revenue sports (e.g. football and basketball) should be financially compensated or not.

To put it more colorfully: Should players see any of that sweet NCAA cheddar?

After a year in which several legal decisions reshaped the issue, and one in which NCAA president Mark Emmert – the man who arguably stands to lose the most by creating a professional class of college athletes – came out in favor of loosening scholarship restrictions, the hearsay and bloviation that have long soiled the debate are finally giving way to legible scenarios and policies.

Objective observers agree that handing over money willy-nilly to players is dangerous and impracticable. However, only the coarsest critic would deny the need to address student-athletes’ financial needs. Somewhere between those two truisms is the future of student-athlete labor rights.

So as the collegiate pay-for-play debate enters its final quarter, let’s review the X’s and O’s of the compensation plans most often discussed.

Scenario #1: Performance-Performance-Based Payments
Pros: Pure incentivized capitalism
Cons: Certainly toxic; possibly illegal

People get a little emotional when confronted by the NCAA’s billion-dollar TV contracts, and seven-figure coach’s salaries. Alarmed by the enormity of the finances, and comparative poverty of most college athletes, they start doing loopy things like formulating facile slave/plantation analogies. Describing his own article as a “thought-provoking work,” Marquette University’s Jonathan Bateman indulged such a sequitur in a 2011 law review entry titled “The New Plantation: Black Athletes, College Sports, and Predominantly White NCAA Institutions.”

Put aside, for a moment, the recklessness of equating slavery with the opportunity to acquire a free college education (often worth $200,000 or more when cost-of-living payments are factored) that dramatically increases one’s lifetime earning potential vis-à-vis high school diplomates ($900,000 on average, according to the U.S. Census Bureau). Consider instead that NCAA Division I colleges are nonprofit institutions, not vehicles to enrich shareholders. There’s no plantation master sitting atop the heap. Sports revenue is typically cycled back though athletic departments to help pay for non-revenue sports like diving, softball and crew.

Consequently, even with those lavish TV contracts and game-day gate receipts, only a small fraction of Division I athletic programs are financially self-sufficient (see sidebar on page 31). Most require donations and subsidies to stay afloat, which is one reason the NCAA prohibits schools from, say, offering offensive linemen a $200 no-sack bonus, or paying power forwards by the rebound. Most schools can’t afford it; those which could would instantly monopolize top recruits, destroying the already uncertain competitive balance among the so-called “Big Five” power conferences (Big Ten, Pac-12, SEC, Big 12 and ACC).  

Also concerning to the NCAA is the minefield of legal headaches that awaits any member school making direct cash payments to athletes. Foremost and most obvious among them: Title IX, the federal law that prohibits sexual discrimination in public institutions. University of Buffalo sports law professor Nellie Drew “absolutely” envisions a Title IX hangup if athletic departments paid high-revenue male athletes but not female athletes in kind. “One of the big factors [with Title IX] is equivalency across programs – scholarships, facilities, things of that nature,” Drew says. “Money [payments] do not explicitly appear [in the law], but in reality, money does count because it affects the provision of all the other items.”

Lastly, performance-payments would invite divisive interpersonal dynamics into the locker room, concedes senior ASU offensive lineman and co-captain Nick Kelly. Resentment and jealousy already pose a challenge to team leaders and coaches; adding money – and the temptation, for instance, to fight over tackle stats, or play through concussions – would add the proverbial fuel. “I can definitely see it as a potential source of tension,” Kelly says. “Guys would want playing time for different reasons. It would be bad for team community and spirit.”

Then again, pay-for-play appeals to the inner professional in Kelly – a notion seconded by Chambers, who also aspires to play in the NFL. “You look at any company, any workplace, and compensation is based on performance,” he says. “I don’t see that as a bad thing. Players would just work that much harder.”

Scenario #2:
Revenue-Based Scholarships
Pros: Rewards revenue-generators
Cons: Undermines community ethos of college sports; Title IX bait

Scholarship agreements are fulfilled in a variety of ways between school and athlete. For many freshmen, a “full ride” scholarship comprises an education, a dorm room, three squares a day and little else. For upperclassmen who live off-campus, it may amount to a cost-of-living check every month. At ASU, they’re euphemistically called “lieu” checks.

The notion of selectively increasing scholarship payments to athletes in high-revenue sports has a lot of fans within those programs, naturally, and certainly has a Keynesian thrust of logic to it. After all, if a given sport is disproportionately responsible for the health of its overall athletic program, shouldn’t those players be better protected than others?

The NCAA has long come under criticism for not protecting the well-being of college players, particularly in basketball and football, which traditionally demonstrate the worst graduation rates of all sports programs (see sidebar on page 31). Former University of Connecticut basketball player Shabazz Napier once infamously claimed that players in the Huskies program went to bed “starving” due to lack of funds. Well, maybe not literally starving, but shouldn’t an athlete who burns 5,000 calories a day in the service of his school be able to afford a midnight snack?

“Man, I lived it,” Chambers says. “You can’t really have a job during the football season. You’re on the field every day from 7 a.m. until 12, sometimes, and then the rest of the time in class or studying. It’s just not practical.

“So if we’re helping the school more [than other sports], I think it makes sense that we get rewarded more.”

Title IX attorneys might not see it that way. After all, female athletes can log just as many practice hours as their male counterparts and be just as time-handicapped. “When it comes to scholarships, [Title IX] is pretty black and white,” Drew says. “They define the opportunity to participate, which is the essence of Title IX.”

Female athletes wouldn’t be alone in resenting the scholarship imbalance. Male athletes in tertiary, non-revenue sports would also take pause. “Speaking as an Olympic-sport kind of athlete, we understand there’s a lot of money in other sports we’ll never see,” senior ASU diver Hunter Atha says. “Football gets a lot perks, and makes millions and millions for the school, so that’s fine. But I do think we have the same expectations, the same practice commitments, put in the same amount of time… we work just as hard and compete at just as high a level. We just don’t have the limelight. So I do think [enhanced scholarships] would be somewhat unfair. From one perspective I would understand if they did that, but we’re all going to the same school, so there would be tension.”

A native of Wisconsin, Atha was prepped for the financial realities of college athletics by his father, who played college football at Ohio State University. “You know, they talked about this stuff back then, too. Paying players. The reason nothing has happened is there’s no fair way to do it. Sports like softball, women’s basketball, volleyball… they’ll never earn the revenue of men’s basketball or football.”

Scenario #3: Across-the-Broad Scholarship Reform
Pros: Legally practicable; helps all athletes
Cons: May burden tuition-paying students

Though the pay-for-play debate sometimes appears intractable, like a 3rd and out at the 20-yard line, the chains have recently moved in the players’ favor.

In 2014, several current and former members of the Northwestern University football team won their case to form a union before the National Labor Relations Board, successfully arguing that the conditions of being a student-athlete at Northwestern were tantamount to employment. Though a later NLRB hearing refused to adjudicate on the case – essentially punting it out of the agency’s purview – the threat of labor lawsuits going viral throughout college athletics was enough to stir the NCAA into action.

Three months after the NLRB ruling, the NCAA board of directors voted to give the Big 5 conferences the autonomy to enhance scholarships, provide more comprehensive health insurance and relax restrictions between players and agents. Though characterized by many in the media as unfair to smaller-conference schools exempt from the new rules – the New York Times complained of the “yawning gap in college sports between the haves and the have-nots” – the new guidelines were biased by design: to quell charges of exploitation by revenue-oriented programs whose massive TV and coaching contracts started the debate in the first place.

A later initiative ratified in January 2015 by the NCAA board was arguably more profound: It requires schools to guarantee and honor four-year scholarships even if a player gets injured – a fair-minded philosophical extension of Obamacare’s “preexisting condition” clause – and pony up the “full cost of attendance” that an athletic scholarship doesn’t cover (read: higher cost-of-living payments). The new guidelines apply to all scholarship athletes, not just high-revenue sports.

Though their drive for unionization stalled, the Northwestern players were the victors, Drew believes. “They got what they wanted… better living conditions, better food, a guaranteed scholarship. It was a real victory for them.”

Pac-12 schools, including ASU, were quick to exploit the new guidelines. ASU increased “lieu” payments by $2,000-$2,500 a year – or about $200 a month. Not a whole lot larger, but “every little bit helps,” Chambers says amiably.

Scenario #4: Trust Funds
Trust Funds
Pros: Protects “amateur” status of athletes; preserves locker-room parity
Cons: Doesn’t help student-athletes when they need it most

The last frontier of the student-athlete payment debate? In 2014, a federal judge sided with former UCLA star Ed O’Bannon in an historic lawsuit against the NCAA that granted college athletes a portion of the billions of dollars generated from broadcast and other media. O’Bannon originally filed the lawsuit in 2009 after seeing his likeness in an EA Sports basketball video game.

The judge capped the payments at $5,000 a year for college athletes, but nobody in uniform has seen a red cent – the case is currently tied up on appeal. If and when it is resolved, some pundits foresee an “escrow” arrangement, wherein such payments are placed in a trust fund that athletes can access after leaving the school. Drew says such royalty payments will likely not run afoul of Title IX. “As long as female athletes are free to do same thing, I don’t think it would be an issue,” she says.

One other prominent antitrust lawsuit against the NCAA – filed on behalf of former defensive back Martin Jenkins by sports labor attorney Jeffrey Kessler – is currently kicking around in the courts. Its goals are more broad than the O’Bannon lawsuit: It seeks to create an “open market” to pay college athletes, unencumbered by NCAA regulation. Drew is less bullish on the Jenkins lawsuit, and says that a successful NCAA antitrust defense would entail “demonstrating the NCAA is a coordinating mechanism with uniform rules protecting amateurism that are essential to a unique product – college amateur sports.”

Does the NCAA provide a unique product – i.e. amateur sporting events that engender school and community spirit in a way that NFL games don’t? One thing is certain: If the NCAA was swept away along with its bylaws enforcing nonpayment of players, college sports would look entirely different. Many football and basketball programs, unable to compete with revenue-rich schools, would likely have to reorganize or disappear. Much tradition would be swept away.

Some ideologues might characterize that as a necessary market correction. But it seems a cynical way to view college sports – as a market, even if it’s true.

Isn’t it better to view college sports as an expression of youthful energy and ideals? A sanctuary bound by community and friendships, not paychecks? “My dad has a good point about playing sports in college,” competitive diver Atha says. “It’s about doing well for yourself, but also helping athletes in other sports do well. Supporting them. It gives you a feeling of school pride. That’s what it’s ultimately about. Nobody should expect to get rich while they’re in college.”

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