How College Athletes Finally Got Paid.

• Author: Simon, Len

ANTITRUST LAWSUITS AND A LANDMARK STATE LAW WERE THE KEY. BUT TO MAKE THE SYSTEM TRULY FAIR AND RATIONAL, THE NCAA NEEDS TO REGULATE, AND PLAYERS MAY NEED A UNION.

Ed O'Bannon, who led UCLA to a national basketball championship in 1995, was visiting a friend in 2008 when his friend's son shouted, "Ed, you're in my video game!" The boy showed him a game, NCAA Basketball 09, that included an avatar that looked and played just like O'Bannon--African American, shaved head, six-eight, wore number 31 for UCLA, and programmed to score and rebound as O'Bannon had. His teammates were also depicted, and the game allowed the boy to match the 1995 Bruins against other teams of yore.

O'Bannon was astounded and angry. No one had asked his permission to depict him, and he was paid nothing for the use of his image. O'Bannon lawyered up and sued the NCAA, alleging that it had violated antitrust law by preventing college athletes from earning money from licensing opportunities like this one. Since its inception in the early 1900s, the NCAA had been enforcing a strict amateurism regime that prohibited athletes from earning any money on account of their athletic endeavors--salaries, cash inducements to attend a particular school, bonuses for winning championships, or income from endorsements or advertising. This last category depends on athletes' licensing their name, image, or likeness to businesses, a practice known as "NIL." The NCAA had long argued that its insistence on strict amateurism was intended to prevent unsavory business arrangements and ensure that college athletes played "for the love of the game."

The all-too-predictable result, however, was that, as college football and basketball revenues skyrocketed, players, including many low-income and minority students, were locked out of the billions of dollars they made for their schools. Before the 2014 NCAA basketball Final Four, the University of Connecticut star Shabazz Napier complained that he and his teammates "have hungry nights [where] we don't have enough money to get food." Napier, who grew up in the projects in Boston, was about to play in a game watched by 80,000 people who paid an average of $500 per seat, along with a massive TV audience. But beyond his athletic scholarship, he didn't have the proverbial two nickels to rub together. The social justice dimension of this regime has not been lost on commentators. In a 2011 article in The Atlantic titled "The Shame of College Sports," the Pulitzer Prize-winning historian Taylor Branch opined that the lack of compensation had an "unmistakable whiff of the plantation." Harry Edwards, a sociologist whose activism inspired two Black athletes' iconic fist-raising podium protest at the 1968 Olympics, has called this issue "the civil rights movement of our time."

Ed O'Bannon's lawsuit, which generated enormous publicity and discussion on this issue, delivered the first major blow to the NCAA's amateurism regime in 2014, and influenced another antitrust case before the same judge, Alston v. NCAA, which culminated in a landmark Supreme Court decision in 2021. My law firm played a supporting role in O'Bannon's case, and I worked directly on a predecessor case that involved compensation for assistant coaches. I also advised legislators who enacted a groundbreaking California law that allowed college athletes in that state to monetize their NIL. The California statute finished the revolution that O'Bannon had started, inspiring other states to adopt similar laws. In response, the NCAA withdrew its prohibition on athlete licensing deals, effectively ending amateurism as we know it in college sports.

Today, some college athletes whose recent predecessors played for a scholarship or simply the love of the game are making six or seven figures annually. The Athletic recently confirmed that it had seen an $8 million NIL contract, payable over three years, between a high school football star who preferred to remain nameless and boosters from a school that desired his services. (Boosters are groups of alumni or friends of the school who make substantial contributions to the athletic department.) Similarly, John Ruiz, a University of Miami alumnus, has committed $10 million to financing Miami athletes through purported NIL deals. And big money deals aren't limited to football and basketball players, or to men. The LSU gymnast Olivia Dunne is reportedly making $2 million from apparel endorsements and social media, and the twin basketball stars Haley and Hanna Cavinder, most recently of Miami, have more than 40 endorsement deals, worth a total of $2 million.

Meanwhile, however, the NCAA has declined to implement any kind of sensible regulation on this burgeoning market, which college officials, journalists, and other observers have dubbed the "Wild West." The endorsements and apparel deals signed by Dunne and the Cavinder sisters are more or less what O'Bannon sued for, but the shadowy world of boosters is not. Over the past year or so, groups of boosters calling themselves "collectives" have begun recruiting high school athletes (and college athletes willing to transfer schools) with promises of up-front NIL money without specifying what licensing deals they'll be expected to accept in return. Many college coaches and offlcials who were just getting comfortable with NIL are quite uncomfortable with this combination of NIL and recruitment, which looks more like salaries or bribes to attend a school.

Last season, the now-retired Syracuse basketball coach Jim Boeheim accused three Atlantic Coast Conference rival schools of "buying players" with booster-generated NIL deals, only to have the allegation boomerang with a press report that a Syracuse booster was planning to spend $1 million on its recruits. The NCAA continues to insist that recruiting through NIL is improper, but it has taken no steps to regulate this market or punish offending boosters or schools. The turmoil led the legendary Duke basketball coach Mike Krzyzewski, known as "Coach K," to say after his recent retirement, "This is the most tumultuous time in the history of intercollegiate athletics, and there's no leadership, no structure, no direction ... It's really good and it's really bad."

To college athletes and those who advocate for their compensation and empowerment, the good outweighs the bad. But there is admittedly a bad look from some shady-looking booster-generated deals, and many parties in this space are seeking to eliminate or limit the chaos. A congressional subcommittee recently held a hearing on this, and promises more, and the new NCAA chief (and former governor of Massachusetts), Charlie Baker, seems ready to try to address the issue. One thing missing from the debate, however, is solid data about how NIL is actually operating, so that the NCAA, Congress, and others might intelligently improve the situation. Regulators might take a cue from Supreme Court Justice Louis Brandeis, who said in 1913, "Sunlight is said to be the best of disinfectants."

One powerful government tool, antitrust law, worked in concert with state legislation to break the back of the "plantation" system that exploited college athletes. Now, to preserve the gains of the past few years, advocates must embrace other tools that historically have established a level playing field for businesses, workers, and consumers. The available tools fall into three categories: further NCAA regulation under its new leadership; federal legislation; and, in the long term, unionization for at least some college athletes, allowing them to take their seat at the table through collective bargaining. Athletes have taken an enormous step toward fair compensation, but it will be a few more years before we see if the civil rights battle championed by Harry Edwards, Ed O'Bannon, and so many others can finally be won.

College sports is a uniquely American experiment. It has both wonderful and terrible elements. On the positive side, it allows young people to enjoy and hone their athletic skills, preparing a few of them for professional careers and providing others with scholarships or at least memories of great wins and cherished teammates. For the public, college sports creates very popular entertainment, live and on TV, and, for some, emotional bonds to universities they attended or have simply embraced. For universities, sports creates enormous athletic revenues (more than $3 billion for the 70 or so schools in the largest conferences), alumni and student pride, more undergraduate applications, and greater contributions to athletic departments.

But on the negative side, many athletes are admitted because of their athleticism, not academics, and don't have sufficient time to focus on their studies. The former Oklahoma State and NFL star Dexter Manley testified to Congress that he couldn't read or write when he finished college. Many athletes leave school without a degree, and are, as O'Bannon testified, "athletes who masquerade as students." The University of North Carolina infamously was found to have propped up athletes' eligibility with classes that never met, but the school somehow avoided NCAA sanctions. Even academically minded athletes are pushed into easy majors so they won't be distracted from their sport. And we have "college" basketball players who barely visit college, spending only August to March of their freshman year on a campus, practicing basketball, playing as many as 40 games, and then leaving to prepare for the NBA draft. Passing one semester of exams does not a college student make.

Further, the NCAA's decades-long effort to block athletes from earning a penny for their efforts created an unfortunate under-the-table economy for star players, in which recruits were secretly paid tens of thousands of dollars in cash for choosing a particular school. A federal prosecution put some people in jail for these activities, and evidence in that case included audio of the LSU...