OK, Seriously, College Athletes Need a Union
According to a recent Sports Illustrated report, the NCAA seems poised to strike back against some of the Name/Image/Likeness (NIL) deals players have been striking since last year’s changes to the NIL rules. A task force is putting together guidelines restricting the involvement of school boosters in such deals, seemingly in response to the proliferation of donor collectives affiliated with specific schools. These collectives are handing out some truly astronomical sums to prospective recruits, including one reportedly worth $8 million, and the NCAA is worried that these are effectively enticements to attend a specific schools.
To be clear, that is definitely what is happening here. The contracts seemingly all contain language specifically denying that they are inducements to attend a specific school, so as to skirt NCAA rules. But in practice, obviously, the deals with a school’s boosters are connected to playing for that school: Just last week, Miami basketball star Isiah Wong threatened to transfer if his NIL deal with a Miami booster wasn’t increased (he ultimately did not transfer, claiming his agent made the threat too hastily). This certainly seems like an employee trying to leverage a better offer for a raise, which is exactly what the NCAA was worried about when the NIL floodgates first opened.
The problem is that, for college athletes, the value of their name, image, and likeness is directly tied to where they go to school—there is really no way for players to get paid that isn’t, in some ways, an “inducement.” That leads to a hodgepodge of often shady deals made to navigate a web of different state laws and regulations, which is not especially player-friendly either. When the people call the NIL landscape the “wild west,” they’re not wrong, even if the NCAA can’t be trusted to regulate it.
All this stems from what I wrote about NIL last year. There has been a naïve hope that these deals could fix the fundamental problems with unpaid college athletes by letting athletes earn money without putting the NCAA or colleges themselves directly on the hook for paying for it. Frankly, that was never a realistic hope—if labor is going to get more, then capital must get less. In this case, booster money that used to get donated to university athletic departments is now getting routed directly to the players. And so the NCAA is rushing to establish guardrails so that doesn’t go too far.
Must players choose between accepting whatever regulations the NCAA imposes, which will invariably limit player movement and compensation, or letting this wild west of shady deals that are often exploitive* continue?
*One contract reviewed by The Athletic apparently contained a provision entitling the donor collective to ask for repayment of the money PLUS a 10% commission, even if the contract itself were terminated.
Of course not! The answer, obviously, is a union. The NIL situation cries out for a collective bargaining unit, since it is a situation desperately in need of consistent, transparent rules, but without an obvious governing body to impose them. No individual state can pass laws governing all of college sports. The NCAA has no credibility and no real legal authority. The federal government can’t pass laws anymore (except, on occasion, by accident).
What you need, then, is by-in from the players themselves, and the only way to do that is with a union. This is obviously complicated by the fact that college athletes are, right now, not considered employees, and they scattered across thousands of campuses around the country—but these are minor details. For the latter obstacle, we at least saw early signs of a nascent attempt to organize college athletes with last year’s #NotNCAAProperty campaign. The success of that campaign is something to build on.
Ultimately, of course, college athletes will need to be treated as employees and paid a real salary. But a collective bargaining process over the NIL issue could be a crucial step to getting there.