Could college athletes still be students if they also were being paid?
This may seem like a self-evidently absurd question: College athletes already are being paid in the form of scholarships and stipends. Lots of college students in general have jobs. There's nothing incompatible about money in your pocket and a textbook on your desk. Of course athletes could still be students if they were free to make money! Duh.
However, this same question figures to be at the heart a current federal lawsuit that is challenging the National Collegiate Athletic Association's amateurism rules—a case that threatens to blow up campus sports pay-for-play prohibitions as we know them, something the recent Ed O'Bannon suit and Northwestern University football team unionization push were unable to accomplish.
The suit, led by lawyers Jeffrey Kessler and Bruce Simon and brought on behalf of former Clemson University football player Martin Jenkins and a pair of University of Wisconsin athletes, aims to create a free and open market for men's football and basketball players, similar to the market that already exists for campus coaches, athletic administrators and essentially every American who does not play major college sports.
According to Simon, his team will need to successfully counter the NCAA's longstanding argument—both in courtrooms and in the court of public opinion—that allowing college athletes to be freely compensated will somehow compromise their classroom educations.
"It's an issue," Simon said. "I've seen, last spring at the [American Bar Association] spring meeting, a mock trial that was put on, basically retrying the O'Bannon case, and I saw what the jurors were saying. I know that people have some pretty strong views about amateurism and how far you can go. It's a balancing act and we do have to change people's perceptions."
Why will changing the belief that money is anathema to education for athletes—if not anyone else?—be so important for the Jenkins case? The O'Bannon and Northwestern unionization cases offer important clues.
The NCAA technically lost the O'Bannon case in 2014, but federal judge Claudia Wilken only allowed deferred payments to athletes of up to $5,000 per year. Last September, a federal appeals court eliminated those trust fund payments entirely. Meanwhile, the national office of the National Labor Relations Board declined to review a decision from NLRB regional director Peter Sung Ohr that would have recognized private university football players as school employees and allowed them to unionize, effectively squashing another avenue of potential athlete compensation.
At the heart of both decisions wasn't whether the NCAA was violating the purpose of antitrust law by price-fixing and restraining trade—the association clearly is—but whether athletes could make money from playing sports, directly through salaries or indirectly through name, image and license (NIL) rights and/or third-party payments, and still be students.
The very idea of such makes many people wary, including federal judges. As the court of appeals wrote:
The record supported the district court's finding that the rules served the procompetitive purposes of integrating academics with athletics …
The Jenkins case—often referred to as the Kessler case, given Kessler's fame as the sports litigator who helped bring free agency to the National Football League, among other accomplishments—seeks to go much further than either the O'Bannon or Northwestern cases. While O'Bannon simply wanted to allow athletes to receive deferred payments from schools tied to the use of their NILs in video games, archival videos and television broadcasts, and the Northwestern effort sought to give athletes a voice at the bargaining table, a Jenkins victory likely would create a professional-type system in major college sports, with athlete unions and collective bargaining.
Not surprisingly, it terrifies those who run the business of campus athletics.
"(Kessler's) the biggest threat," former Northwestern University president and vocal amateurism supporter Henry Bienen told VICE Sports. "You can live with O'Bannon."
The O'Bannon case gave Simon and Kessler plenty to work with. The O'Bannon legal team did an excellent job of showing that schools can afford to pay athletes far more than they say they can, and that schools exploit athletes far more more than they "protect" them from exploitation, as the NCAA often claims.
"To the extent that they are basically producing all these revenues for the NCAA, and it's on their backs as workers, there has to be recognition of that," Simon said.
Still, Simon and his team will have to show that said exploitation isn't okay because it serves the purpose of athlete education. Logically, that shouldn't be a hard sell: when I was paid to cover O'Bannon case for media outlets while finishing my degree at Northwestern, it had nothing to do with my ability to also go to class. Indeed, many students make money and hold jobs while on campus that have nothing to do with their degrees, and the NCAA doesn't try to block those payments—probably because doing so doesn't produce millions of dollars of surplus revenue that can be used to line the pockets of administrators, coaches and everyone else currently deciding who should get what in college sports.
That said, the task facing the Jenkins plaintiffs goes beyond simple logic—they are up against the emotional, deep-seated, quasi-religious belief that money will corrupt the sacred bond between academics and athletics. It's a belief that the NCAA and its member schools have cultivated in the minds of the American people for over a century, and if the current presidential campaign has taught us anything, it's that belief and sentiment tends to trump reason and facts.
"Amateurism can only go so far," Simon said. "It's being used as an excuse to not treat them like workers."
In a society where "amateurism" has an almost sacred meaning—so sacred that Americans eagerly abandon their everyday faith in economic freedom, equal rights under the law, the dignity of work, and the uncontroversial goodness of making an honest buck off your skills and talents, all because college sports—Simon and company have their work cut out for them. It's one thing to understand that allowing college athletes to be paid has nothing to do with academics. It's quite another to accept it.