More from Solomon: EA Sports wanted to pay players
When the Ed O'Bannon trial starts June 9, the plaintiffs will seek an end to NCAA rules preventing football and men's basketball players from getting paid for commercial use of their names, images and likenesses. It's a fundamental principle the NCAA has clung to throughout its history, and the body doesn't appear willing to compromise on that point.
NCAA chief legal officer Donald Remy said NCAA members “right now” believe paying a college athlete or allowing a player to receive compensation based on name, image and likeness would erode the collegiate model.
“I don't know that it's my call or that I would be able to conceive of a particular circumstance where a student-athlete would receive compensation for name, image and likeness,” Remy said. “I do know the membership has consistently found it to be something that would ruin the collegiate model and create problems in the recruiting context and competitive fairness model.”
But say the NCAA and its schools lost the O'Bannon case and the inevitable subsequent appeals, or lost the Jeffrey Kessler lawsuit that essentially seeks a free market for athletes when they're receiving scholarships. What might “pay-for-play” -- the ubiquitous term often used without explaining what it means -- actually look like?
CBSSports.com broached that question with four people who are critics of the college sports system. The overriding question to Ken Feinberg, Jeffrey Kessler, Ramogi Huma and Jay Bilas: What models could work to compensate college athletes beyond their scholarship?
- Ken Feinberg, renowned mediator
Three years ago, Feinberg attached his name to the O'Bannon lawsuit pro bono. He's a board member of the Former College Athletes Association, which is the mechanism in which licensing revenue would be collected for former athletes if O'Bannon prevails or settles.
Feinberg cautioned that it's very premature to say exactly what the formula would be for distributing money without knowing the amount and source of the available funds. But there is a theory in place. Feinberg said former athletes in all sports -- not current athletes -- would be eligible to receive individual compensation if they voluntarily join the FCAA.
“It could be former athletes who appeared on television,” Feinberg said. “It could be former athletes the NCAA secured for video games, T-shirts, emblems on automobile stickers or any item. It could be any and all revenue sources that benefit the NCAA. The FCAA is not looking to get revenue from TV outlets. It includes only those funds that end up in the NCAA's bank account.”
Feinberg said the FCAA has “absolutely nothing to do” with the attempt to unionize college athletes. However, it's worth noting that Huma heads up the Northwestern football player union efforts and is a board member of the FCAA.
If the FCAA became a reality, the money would be distributed by Nashville-based SESAC, one of the nation's largest performers-rights companies. SESAC would also be in charge of registering the athletes. The amount of money distributed to athletes would be based on formulas created by the FCAA.
How would the difference in payouts be determined between a football player and a field hockey player, or the payouts even between two football teams? That would fall in large part to Feinberg, a renowned mediator who distributed funds to families of 9/11 victims. The revenue dollars generated by a sport or school would result in more money for a player.
“I would think a former football player at Michigan or Southern California is probably entitled to more funds than a former football player at Harvard or Yale,” Feinberg said. “But I don't think it's feasible or wise to allocate different funds among football players at a particular team. I don't think Johnny Manziel, when he graduates, should receive more money than his teammates because he helped Texas A&M appear on TV seven times. Football is a team game. Now, if Texas A&M is selling his shirt that says Manziel, that's different.”
- Jeffrey Kessler, sports attorney
Kessler, who helped bring free agency to the NFL, filed the Martin Jenkins lawsuit on behalf of current and former players in March seeking to dramatically change the system. He wants an injunction to end the NCAA rules limiting the amount of financial aid players can receive, essentially meaning players would be allowed to be paid.
In Kessler's mind, if Ohio State wants to pay X amount of money above a scholarship to a player and Alabama chooses to pay Y, so be it. That's the free market he wants.
“The market would allow the best solution,” Kessler said. “If the best solution is to put money in trust funds for the athletes and give it to them when they leave or even increase amounts if they stay and graduate, then that will be the solution. The idea is to let the schools do what they want. We want to free schools to make their own decisions.”
Under this scenario, athletes would almost certainly have to pay taxes.
“That's OK,” Kessler said. “Everybody else pays taxes if they get compensated. The IRS doesn't treat scholarships as income. I don't think that would change no matter what happens in the case. If they're given different economic benefits, then the IRS may tax them. That's fair.”
Kessler, who recently started a college sports law practice, said he sued the NCAA and only the five major conferences -- not the rest of the Football Bowl Subdivision -- “because that is where the most amount of money is.”
The NCAA and the five major conferences haven't responded yet to Kessler's suit. “We anticipate they'll make the same arguments they always make, that they're entitled to have these rules to preserve the purity of amateurism and also make some arguments about competitive balance,” Kessler said. “I think what's happened is the money's gotten so big (in college sports) that all pretenses of the amateurism argument have completely faded away.”
- Ramogi Huma, players union organizer
Huma, a former UCLA football player, has been pushing to get more benefits and rights to athletes for more than a decade. He took it to another level this year by leading the efforts of Northwestern football players to be declared employees by a regional director of the National Labor Relations Board. (Northwestern is appealing the ruling.)
“The NCAA's catch word ‘pay for play' is a powerful phrase that can make people flinch,” Huma said. “But to thoroughly discuss this issue, people have to understand players are already paid to play right now -- compensation from a scholarship. The question is should additional revenue get directed to them? We've never advocated professional salaries.”
Huma wants the so-called Olympic model -- that is, college athletes would receive money based on individual deals, such as endorsements or autograph signings. This model would allow athletes to receive whatever the outside market bears benefit while the NCAA would keep its broadcasting and licensing revenue without having to pay players.
“We're open to ideas that much of those funds could be put into a trust fund for later,” Huma said. “We're not necessarily saying if Johnny Manziel did a commercial he would have to receive all of the money right then and there. Maybe more money goes into a trust fund to incentivize graduation or retention. It would be a win-win. The guys who are leaving early have the best opportunity to generate revenue.”
Huma acknowledged there are questions about the Olympic model, such as whether rogue boosters would set up fake endorsement spots to funnel money to players.
“Have a clearinghouse to establish which companies are able to be eligible for those types of commercial opportunities, whether it's charities or companies for autograph signings,” Huma said. “Start with corporate sponsors of the NCAA and schools. Obviously, they're trusted sponsors or the schools wouldn't be dealing with them. That would provide a lot of opportunities for the athletes right from the jump.”
- Jay Bilas, ESPN analyst
Very few people are more critical of the NCAA than Bilas, a lawyer by trade. He doesn't expect the compensation model to significantly change unless there are court victories in the O'Bannon and/or Kessler cases.
“I think any change is going to be forced upon the system,” Bilas said. “Those in charge have a different view of things. I believe they're trying to protect their paychecks, and I don't blame them. Maybe if I were them I'd do the same thing. This is a little bit scary for some people. One of the ways people have to look at this is if we have to pay players, you can't spend as much on facilities and can't have gigantic athletic departments with a waste of money.”
Bilas would allow athletes to be compensated through the Olympic model and by getting paid by schools, if the universities elect to do so.
“Allow institutions to do what they want just as we do in every other area as far as compensation,” Bilas said. “Right now my daughter is an artist and sells her work. There's no restriction on selling her work as a college student. They're not saying, ‘You dirty professional artist, you're not allowed to be here.' We're not saying it's unfair because Duke can afford to pay more than Elon for a coach. People understand that. If you don't want to pay, it doesn't mean you can't be competitive.”
If payments were allowed, Bilas envisions players would receive non-compete deals with schools and endorsement companies. For instance, Jabari Parker might sign an exclusive three-year deal with Duke, and Manziel might have an exclusive endorsement deal with Topps in addition to his deal with Texas A&M.
"ADs will tell you unapologetically that the athletes aren't even worth the scholarship we're giving them and what would they be worth in the D-League or overseas?” Bilas said. “OK, if they're not worth anything, why restrict them? In the same breath they'll say if we open it up, we'll have bidding wars. Well, why open it up if they're not worth anything? When coaches and schools are available on the market, they don't call it a bidding war. It's called a business. You give money to a player, boy, now it's a bidding war.”
Bilas believes a perception of college athletes is that since only a small number of them play professionally they shouldn't ask more beyond a scholarship.
“If it's such a small percentage, why are we pouring all of this time and money into it?” he said. “Well, they'll say it's an integral part of the educational process. OK, then why don't athletes get any credit for what they're doing? It's looked upon by school and academicians as a contagion that's drifting away from the universities. All I've been saying is let's call this what it is: professional sports. If some people don't want to pay, then don't.”