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Why Power 5 Conferences Should Split Media Rights Revenue With Football Athletes
Part I of Victoria Jackson’s three-part paper on the importance of football in the overall economic structure of college athletics was published April 12, 2022 in ADU.
Just as football has always been a sport apart, so too have been football athletes, in their athletic and academic experiences and treatment by universities. The time demands and expectations of performance mean that football athletes face even more pressure-filled, challenging circumstances balancing athletic and academic roles and responsibilities. Graduation rates among football athletes, especially Black football athletes, are considerably lower. Even for those who graduate, the educational degree-seeking experience can be watered down, with the preponderance of “clustering” in majors and “majoring in eligibility,” and the sports commitments that make visiting office hours, attending special events, working internships, or taking a semester abroad less likely.
As athletic facilities continue to move farther and further from the academic core of campus, the geospatial design of football also sets football athletes physically apart from other athletes. Administratively, universities have long organized football separately in bookkeeping, and continue to do so, even when reporting numbers for compliance with Title IX.
The rhetoric upholding amateurism – today, contained by the NCAA’s “No Pay” hard line – also includes the crucial notion that all sports within an athletic department, and all athletes across all teams, are the same and deserving of the same benefits. This belies the very different industries operating under the umbrella of college sports. Speaking in terms of football athlete labor, the actual price of an athletic scholarship (despite its presentation by amateur ideology as “priceless”) falls far short of the monetary value of a football athlete’s labor. Moreover, the athletic scholarship a football athlete receives is of weaker value than those enjoyed by athletes in other sports, who are more likely and better set up to enjoy a fuller range of educational experiences and opportunities that a scholarship to a university is supposed to provide.
The conflation of amateurism ideology’s morality with education has worked to place an athletic scholarship on a pedestal of pricelessness while encouraging the sentiment that pay somehow would harm education. But this has also, ironically and tragically, had the result of quashing innovation in athlete education, while simultaneously successfully creating a misdirection by keeping the focus on policing compensation and perceived violations of amateurism.
“No Pay” rules are not at their core about punishing “bad” actors and “cheaters,” though that is how they end up being implemented in practice. “No Pay” rules are about making sure athletes are not classified as employees. So, of course “No Pay” is not about protecting athletes’ education.
If the concern and the north star really were education, we would have seen a redesign of curriculum and loosening of timelines for football athletes. Why haven’t we seen the development of a football major, for those students who want it, inspired by majors in the performance arts? Why should a football player be expected to enroll in 12 or 15 credit hours (beyond football learning) in a fall season when he is working upwards of 40 hours per week, facing far more intense pressure—and from a wider range of sources—than athletes in other sports to perform well and win, and playing a physically demanding game that often causes athletes to endure a lot of pain? Because admitting sports are serious and a business and redesigning football training in line with educational and professional development principles to serve athletes would expose the professional nature of college football. The last thing colleges have wanted to do is act in a way that convinces state and national labor relations boards to classify and treat football athletes as employees.
Conference football revenues are ready to be divided and shared with football athletes
Everything about Power 5 conference college football has the markings of a professional sports league, with the exception of the “No Pay” principle bundled together with the “student” identity of athletes. Many professional sports leagues in the United States have adopted revenue sharing approximating 50-50 with athletes as part of collective bargaining agreement negotiations with player unions. Fifty-fifty revenue sharing has become the standard. Dropping the “No Pay” rule while keeping a requirement that football athletes be students is both the right benefits move for football athletes and the right business move for colleges and their conferences.
Conferences have been handling and standardizing the distribution of football TV money (and, more recently, CFP money) since at least 1955, when the Big Ten, according to its website, “formulated a revenue-sharing model designed to pool all football television rights of its members and share those proceeds equally. The conference and its members continue to utilize a revenue-sharing model, dividing media rights, bowl payouts and other profits among all conference institutions.”
The Power 5 conferences should see that the changes they have made to grow the business of college football into a multibillion-dollar industry have made 50-50 revenue-sharing with athletes inevitable. They should also see that 50-50 revenue sharing is coming because of broader, external forces.
External Forces—Competition: Domestic and Global Disruptions
Outside of higher education, the offering by sports leagues of paid compensation and free or subsidized education has become commonplace. New start-up leagues offering both pay and education have enjoyed the most success in basketball. Some, like the Professional Collegiate League and Overtime Elite (intended for elite high school juniors and seniors) have been explicit in their attempt to disrupt big-time college and high school “amateur” sports. This disruption and recalibration of expectations for U-23 athlete benefits in basketball will affect all high-revenue sports industries, and even parochial, domestic, inward-facing American football has become exposed. Improved athlete compensation and education benefits in the NBA G-League, PCL, and Overtime Elite coupled with an openness among young American stars to pursue opportunities in professional leagues beyond U.S. borders have created an awareness among professional and developmental sports organizations that financial compensation and education benefits are not mutually exclusive. Instead, the expectation is that they should come together in a package of athlete-employee benefits.
These changes are even happening in football. While Don Yee’s attempt to disrupt college football with a pay-to-play league has failed for now, the United States Football League, set to relaunch as a spring league in April, will be providing all athletes and staff with education benefits as part of compensation packages. The NFL, like most American and European professional sports leagues and teams, offers education benefits and paid degree-seeking opportunities as well.
External Forces—Dismantling: The U.S. Federal Government
All three branches of the federal government have taken interest in fixing troubling business practices of American universities’ big-time sports.
The Supreme Court, in NCAA v. Alston, has determined schools’ efforts to come together to agree to the placement of an artificial restraint on one form of athlete compensation (narrowly, tethered to education) to be a violation of antitrust law. More importantly, going forward, the Court made clear it would put an end to the NCAA’s decades of reliance on a passage in Justice John Paul Stevens’ opinion in Board of Regents that the association claimed the Court “expressly approved the NCAA’s limits on student-athlete compensation.” Writing the unanimous opinion of the Court, Justice Neil Gorsuch, “That is incorrect… that sort of passing comment on an issue not presented is not binding, nor is it dispositive here.”
This Court could in the near future be amenable to an argument in support of the lifting of restrictions on other forms of athlete compensation, including the possibility of ruling in favor of revenue-sharing, and tied to schools monetizing athletes’ NIL in the media rights sold by conferences. House v. NCAA, a class-action lawsuit that also includes Oregon basketball star Sedona Prince among the athlete plaintiffs and the Power 5 conferences as defendants, is currently at the federal district court level. The case, which Judge Claudia Wilken denied an NCAA motion to dismiss, makes an antitrust claim that NCAA rules preventing name, image, and likeness compensation from the selling of media rights by conferences and the NCAA has an anticompetitive effect.
The executive branch has been actively engaged in interventions to correct college sports business practices too. The United States Justice Department filed an amicus brief in support of the athletes’ claims, and, after requesting to speak during oral arguments in support of the athletes in Alston, Elizabeth Prelogar, Acting Solicitor General, told the Court, “Amateurism is not its own free-floating ideal under the antitrust laws.”
In a similar vein to the Justice Department reminding American universities that they may not evade antitrust law, the National Labor Relations Board has made clear to schools that they must be careful not to use language that deters athletes from recognizing and activating their rights as employees. General Counsel Jennifer Abruzzo issued a memo explaining to universities that “misclassifying such employees as mere ‘student-athletes’, and leading them to believe that they do not have statutory protections is a violation of Section 8(a)(1) of the [National Labor Relations] Act.”
Meanwhile, Senate and House committees and sub-committees continue to hold periodic hearings, and Senators and Congresspeople have announced athletes’ bills of rights and other forms of drafts legislation with proclamations of looming changes coming to American college sports. Five years ago, the place of governmental intervention appeared to be Congress, but Congress’s role in determining the future of college sports policy has become increasingly murky, and quite possibly unnecessary.
The NCAA’s “No Pay” Hard Line Will Be Impossible To Hold (And Has Never Been Static)
In 2013, during the O’Bannon case and growing public awareness and attention to college sports issues, Allen Sack and Andrew Zimbalist gifted the world with a brilliant line (with which Prelogar’s pairs nicely): “Amateurism in intercollegiate athletics is whatever the NCAA says it is.” Their paper detailed the artificiality of amateurism and the history of classifying and reclassifying what fell on the clean side of the amateur line and what fell on the dirty side—including an incredible moment when forms of subsidization deemed clean (like booster payments to athletes) and methods deemed dirty (schools granting athletic grant-in-aid untethered from academic merit) had flipped.
Though school-paid athletic grant-in-aid has been the standard form of subsidization since 1956, the NCAA’s “No Pay” line has been in constant motion since 2014, and especially over the last year. Every time the “No Pay” line has moved it has been in reaction to athlete agitation. And every time the effort to expand athlete benefits has provoked powerbrokers—university presidents, athletic directors, coaches, and conference and NCAA executives—to declare the hoped-for increase in athlete benefits to be ruinous of “competitive balance,” a violation of the amateur or educational spirit of college sports, and a form of pay for play. But after every increase in athlete benefits, college sports have survived and those powerbrokers subsequently have taken credit.
Schools opposed increasing scholarship amounts up to the full cost of attendance, presenting COA as something that could become manipulated and transformed into extra, impermissible benefits. Then Power 5 schools voted to approve COA stipends. Same story with school-provided food and meals, with the ever-expanding rule-book even drilling down to condemn the presence of cream cheese on bagels… until the 2011 Final Four, when UConn basketball athlete Shabazz Napier comments about going to bed hungry and subsequent public outrage motivated NCAA members to quickly vote to approve unlimited provisions and access to food.
The arguments against the expansion of benefits provided to athletes can at times feel Orwellian, with NCAA lawyers arguing in Alston that increased spending by schools on the schooling of athletes amounted to pay for play and would erase the demarcation between college football and professional football. Especially so, when that recent argument against increased education spending, presented before the Supreme Court, no less, is lined up alongside the latest phenomenon of in-house name, image, and likeness services provided in a systematic manner, with schools negotiating and taking a cut of the endorsement deals they broker for athletes department-wide.
It is easy to see a natural next step from in-house coordination and facilitation of name, image, and likeness deals, like what has been established at Ohio State, to schools sharing the money they make off athletes’ NIL in the media rights they sell or the school-wide endorsement deals they pen. Moving outside the United States to look to the (global) Olympic Movement’s progressive steps out of amateurism and into outright professional athlete participation offers a useful comparison. (Though, it must be odd to be an international athlete in 2022 competing in the NCAA at an American college, when one’s home country never had any “amateurism” or “no pay” rules around sports participation and meanwhile simultaneously being unable to monetize one’s name, image, and likeness in the United States because laws around employment and student visas prevent it.)
Finally, the recent phenomenon of colleges embracing sports betting and entering in partnerships with sportsbooks would seem to be the thing to place the final nail in the coffin of amateurism, or at least the sense that schools might want to protect students in educational settings from one of the most explicit markings of professional sports. One would think preventing the introduction of gambling would be an important effort in universities’ proclaimed mission to retain a clear demarcation line between college and professional sports as part of their “No Pay” hard line. Instead, the embrace of gambling by institutions of higher education represents yet another way athletic departments are operating just like any other twenty-first century sports entertainment business, their existence within educational institutions made inconsequential.
About The Author:
Victoria Jackson, Ph.D., is a clinical assistant professor of history and sports historian at Arizona State University. She is a former NCAA champion and professional track and field athlete and has written extensively about American college sports.