Unionizing NCAA Players: A Simple Question in a Free Society, But A Total Mess In Ours

This week, the NLRB agreed to allow the players on the Northwestern University football team to unionize.   This is one of those issues that is simple and straightforward in a free society and a total mess in our less-than-free society.  Here are a few thoughts:

  1. In a free society, this is a no-brainer.  The Northwestern players are welcome to create an association among themselves and call it anything they like, including "union".  That association is free to try to negotiate with the university for better terms  (they are also free to fail at this and make no progress).
  2. However, it is clear that we are not a free society because the players had to go to the government and ask permission to form this particular type of association.  The reason is that associations called "unions" have been granted special powers and privileges under the law not available to other associations.  There are also a large body of very particular rules for how such associations may conduct business and how other groups (in this case the University) can or cannot interact with it.  It is a very tricky legal and philosophical question whether this package of benefits and privileges should be accorded to a group of college football players
  3. In a free society, the fact that the players don't get paid cash and that their universities make millions off the football program would be irrelevant.  The players freely agreed to the deal (in most cases, playing in exchange for free tuition and perhaps a chance to land an NFL job) so there is nothing inherently unfair about it.
  4. However, in our society, we have all sorts of government interventions.  I consider many of these interventions to be counter-productive, even occasionally insane.  But if one is to navigate such a society (rather than, say, go off and live in Galt's Gulch), I think the principle of equal protection is critical.  Arbitrary government interventions in free exchange are FAR worse when applied unevenly.  From an equal protection standpoint, I think the players may have a good case.
    • The law generally does not allow profit-making businesses (and the NCAA and college footfall are certainly those) to accept unpaid labor.  Many folks who don't deal with the Fair Labor Standards Act every day will say: "players are paid, they get free tuition."  But this is not how the FLSA works.  It counts non-cash wages only in very specific circumstances that are enumerated in the law (e.g. lodging).  Think of it this way -- McDonald's could not legally just pay all its employees in french fries and claim to be compliant with the law.  Also, large numbers of Division 1 football and basketball players never graduate, which shows a fair amount of contempt by players for this supposedly valuable "free tuition" compensation.
    • On the other hand, most college athletics are not profit-making.  My son plays baseball at Amherst College -- it would be laughable to call this a profit center.  I am not sure there are but a handful of women's teams in any sport that generate profits for their school, and even on the men's side money-making is limited to a few score men's football and basketball teams.   But the few that do make money make a LOT.  University of Texas has its own TV network, as do most major conferences.
    • The law generally does not allow any group of enterprises to enter into agreements that restrict employment options.  Google et. al. are getting flamed right now, and likely face criminal anti-trust charges and lawsuits, for agreements to restrict hiring employees from each other's firms.  The NCAA cuts such deals all the time, both severely restricting moves between schools (transfer provisions in Division I are quite onerous) and preventing poaching at least of younger players by professional leagues like the NBA and NFL.   The notion that top players in the NCAA are playing for their education is a joke -- they are playing in college because that is what they have to do in order to eventually be allowed in a league where they can get paid for their skills.
    • Actually trying to pay players would be a real mess.  In a free society, one might just pay the ones who play the most profitable sports and contribute the most value.   But with Title IX, for example, that is impossible.  Paying only the most financially valuable players and teams would lead to 99% of the pay going to men, which would lead to Title IX gender discrimination suits before the first paycheck was even delivered.  And 99% of college athletes probably don't even want to be paid
    • Part of the pay problem is that the NCAA is so moronic in its rules.  Even if the university does not pay players, many outsider would if allowed.  Boosters love to pay football and basketball players under the table in cash and cars and such, and top athletes could easily get endorsement money or paid for autographs by third parties.  But NCAA rules are so strict that athletes can be in violation of the rules for accepting a free plane ticket from a friend to go to his mother's funeral.  When I interview students for Princeton admissions, I never buy them even a coffee in case they are a recruited athlete, because doing so would violate the rules.
    • Much of this is based on an outdated fetish for amateurism, that somehow money taints athletic achievement.  It is hilarious to see good progressive college presidents spout this kind of thing, because in fact this notion of amateurism was actually an aristocratic invention to keep the commoners out of sports (since commoners would not have the means to dedicate much of their life to training without a source of income).  The amateur ideal is actually an exclusionist aristocratic tool that has for some reason now been adopted as a progressive ideal.   Note that nowhere else in college do we require that students not earn money with their skills -- business majors can make money in business over the summer, artists can sell their art, musicians can be paid to perform.  When Brooke Shields was at Princeton, she appeared in the school amateur play despite making millions simultaneously as a professional actress.  Only athletes can't trade their skill for money in their free time.

I am not sure where this is all going, but as a minimum I think the NCAA is going to be forced to allow athletes to earn outside income and accept outside benefits without losing their eligibility.

Back in 2011 I wrote an article in Forbes on this topic


  1. tmitsss:

    Once again I am reminded of the Ancient Greek word for amateur ... Oh wait there wasn't one

  2. johnson85:

    "The NCAA cuts such deals all the time,....preventing poaching at least of younger players by professional
    leagues like the NBA and NFL."

    Is this true? I think the NCAA supported the One and Done Rule, but I'm not sure they had any real influence. The NBA instituted the One and Done Rule because it was good for them, giving them at least one year of scouting against decent competition before being forced to make a call on whether to draft a player. Same thing with the NFL: the 3 year rule turns the NCAA into their de facto (and free) farm league. It's beneficial to the NCAA, but I don't think they cut any deals with the NFL to get it. I have no clue about the baseball rule. I'm guessing the MLB may enforce the 3 years once you go to college as a favor to the NCAA if not a clear quid pro quo deal. I can't think of another reason it would make sense to make high school players draft eligible but not college sophomores.

  3. mesaeconoguy:

    Get ready to have your scholarship taxed, players.

  4. mlhouse:

    1. The Brooke Shields analogy is BS because there aren't boosters out there that are paying "actors" under hte table to go to their fine acting school.

    2. The NCAA players are already paid. They receive full ride scholarships to their college that are valued at least $25,000, and probably more.

    3. The brand value is with the college, not the athlete. If you removed the college brand from these teams, put them out in the open market, and had people pay to watch them play, very few people would. Put the University of Minnesota stickeron their helmets and suddenly tens of thousands of people will pay high ticket prices to watch a mediocre team play.

    4. A college sports union is a JOKE. What are they going to do? Go on strike and not play? Please. The end value for the student is in the competition. My son plays Division III college football. He does it for free. He doesn;t even get a scholarship. The Division I players should shut their mouths and go play football.

    5. If the "college student athletes" want to make paying arrangements, they shouold go to the NFL and NBA and get them to startminor league programs outside of the NCAA programs, instead of using coillege athletics as their minor league system.

  5. Sam L.:

    How about taxes on players' "income", and SS & FICA? How could that get taken out of tuition and board?

  6. mahtso:

    Re #1: is this a chicken and egg situation? Are boosters not paying actors because those worth paying are not barred from taking acting jobs while in school and so actors are not left to choose between taking money under the table or taking no money at all?

  7. mlhouse:

    Do you really think that is the case? Seriously? Or do you think it could possibly be no one really cares about drama?

  8. randian:

    The NBA's CBA has a hard cap on new player compensation. I'm not sure that's a legally enforceable restriction, since it would be forbidden in most employment contexts and the major professional sports "unions" are very careful not to classify themselves as, legally speaking, unions.

  9. Matthew Slyfield:

    #4 The end value for the typical college athlete in the big sports is career ending injuries and no marketable skills outside of sports.

  10. mlhouse:

    False as far as injury. Probably true about skills but that isn't the fault of the school.

  11. JKB:

    Actually, the reports out of North Carolina would indicate that the athletes play for the credential and it is up to them to derive any education from the job requirements of student athlete.

  12. Matthew Slyfield:

    You miss the point that potential boosters wouldn't need to pay potential actors under the table.

  13. mlhouse:

    No you miss the point that there aren't any boosters who care.

  14. Duvane:

    I generally agree with your take on the lay of the land, but I'm going to nitpick a little. I think you underestimate (as many do) the value of what the schools and athletic programs offer student athletes. Setting aside the value of the tuition for a moment, the amount of resources a student receives in conditioning, nutrition, and coaching is huge. It is the very rare high school student who is ready for the NBA, and in football such a thing is non-existent. Even if it were otherwise feasible, what would a talented athlete have to pay to get the kind of mental and physical improvement that a good collegiate program will provide him? Now, one could make the argument that it is the professional leagues that should be doing this heavy lifting, instead of letting the colleges act as minor leagues, and I wouldn't necessarily disagree. But from the student's point of view, that is a tremendous amount of value that the school provides, in exchange for their performance on the field. Fortuitously, those students who receive the most value out of their training are those who (ideally) receive the least value (at least in economic terms) from the free tuition: those who go on to high paying athletic careers, where their degree matters little, but the training may be what made them.

    Of course, in the non-ideal case (the real world) the big losers are those students who play for four years, aren't able to make a career out of sports (in some fashion--it doesn't have to be as a player; plenty of former college players make good money as coaches, sportswriters, and commentators), and didn't get a degree in something other than underwater basketweaving. In some cases that's their own fault through bad decisions (although they may have been getting poor guidance along the way, possibly from coaches), or it may be because it simply isn't possible for some students to pursue a valuable degree while contributing athletically to the level required of their scholarship. Plenty of students _are_ capable of doing that and leave with a real degree, but it takes some serious dedication. On the other hand, it was the student's decision to pursue their degree on an athletic scholarship; they could have chosen to work to pay for school if they weren't eligible for academic scholarships, as so many others do. And if it was their athletic potential that led them to even being admitted (which, of course, happens all the time, whether it should or not), then they were being given a gift in even being admitted--which is not to say that the best use of their time was to accept it, but, again, that's the student's decision.

    mlhouse's point #3 is a good one that is too often ignored. If you snapped your fingers and made this a world where all the athletics departments in the country had no affiliation with a university and where the NCAA was in fact a big minor league, the ticket sales and tv revenue would basically go away. The interest in college athletics starts with the college, not with the team. It is the fact (or fiction) that the players are _students_ that drives interest. I also don't think amateurism enters directly into that calculation, either (although I think you're correct about the lip-service paid to amateurism).

    But, while the amateurism point in interesting, and I think valid to a certain extent, I don't think it's central. The reason Brooke Shields could work as an actress while appearing in an amateur production, is because nobody would ever give an actress a job to get them to go to a particular school. If you allowed that with students, then every college town would be full of well-paying "jobs" that happened to get offered to promising recruits. Would that be fair? Maybe, maybe not, but it would destroy what's left of the idea of student athletes as students first--if the top athletes just go to what ever school pays them the most, then that destroys the illusion that the teams are made up of students, and once that happens, see the above paragraph.

    College athletics is a bit of a mess. It has turned into a big business that is based on not really being a business, which to me seems unstable. I haven't heard any ideas that I think will make it any better, and this one (the union) sounds, frankly, pretty stupid. Your initial point, though, that this is an illustration of the vast web of nonsense that we put up with with government regulations is perfectly valid.

  15. irandom419:

    The only problem I have with college sports, is that the athletes have to sign over their image too. I remember one interview where the athlete didn't know he was in a video game. If the point is that they are there to play a game, then how does a video game fit in?

  16. DrSteve:

    The NCAA's greed got us all here. it wasn't enough to prevent players from receiving even the slightest outside financial assistance, or making sure they sign over their image, or making them practice/play for more hours than they spend on studies in toto. Someone pointed out the "student-athlete" who doesn't make the pros and is left with no real education. What about the "student-athlete" who injures themselves playing and is off the team? or is dropped from the team? They are on their own; they lose their scholarship and they have no healthcare insurance. The NCAA drops them like a hot potato.

  17. BillRobelen:

    That issue has already been settled. A large group of former NCAA football players sued EA Sports over their images and names being used in video games without their consent. It has been long settled law that a person has the right to control the use of his name and image. NFL players have not had this issue, because the NFL Players Association negotiates licenses with the computer game companies.

  18. irandom419:

    Probably heard it on PBS and as usual it was out of date.

  19. Satterthwaite:

    The solution is to get rid of college sports. In my state people talk about 'a football team with a university attached.' It is a joke.