Fixing the 'mess' that is college sports compensation | Opinion

Now that the college basketball season has ended with its March Madness extending into early April this year, for both men and women, the largest revenue-raising college sports are over for the year and the less lucrative and watched spring sports are in progress, including baseball, which has a strong foothold here in Florida.

As the major seasons come to an end, college teams are throwing open transfer portals for basketball and football to welcome new players and watch as the flow of money goes to college athletes (and their agents) under the rubric of Name, Image & Likeness (NIL) and other related forms of compensation.

President Trump, who has quite a bit on his plate these days, was spot-on in identifying the situation in college sports as a "mess" at a conclave he summoned to the White House last month of athletic movers and shakers, politicians, and other insiders and then pledged  to come up with a  "very encompassing" Executive Order that  he declared would "solve all of the problems" attendant to what the new cliche refers to as the changed "landscape" of college sports. He took a starting stride in that direction by forming five committees comprised of these high echelon personnel, including a few politicians, too, although regrettably devoid of any Democrats, and without any representation from athletes or their advocate, whom the President said he would add later.

Marshall Tanick

Their mission is to come up with proposed reforms to the untidy situation now, a monumental task while legislation percolates in Congress under the stewardship of Texas Senator Ted Cruz but whose chances of enactment are somewhere between slim and none, with heavy odds on the latter.

Many culprits are responsible for creating  this "mess," but the main blame lies with the U.S. Supreme Court  whose decision in June, 2021 in the case entitled Alston v. NCAA removed all restrictions that the college establishment had placed on student-athletes receiving outside compensation, a prohibition often honored more in the breach than in the observance with under-the-table payments and other surreptitious arrangements. That unanimous ruling, joined into by members of both the conservative and liberal wings of the tribunal, heralded the beginning of NIL, which bred a subsequent settlement last year by the regulatory college authorities in a class action lawsuit brought by former players, known as House v. NCAA, which established a $2.8 billion fund  to  pour into college coffers to pay athletes directly over a 10-year a period. Combining the NIL money  from outside sources paid directly to the athletes with the House money going  to the  institutions themselves to dole out to their athletes, these arrangements make it easier for players to cash in on multiple occasions as the prior restrictions sacrificing one year of eligibility when transferring between schools has been stripped,  creating the portals through which players can willy-nilly change schools on an annual basis, negotiating for a larger NIL and House  payments at each way station. This has created a veritable arms race within college sports, especially high-profile football and basketball.

But the Alston decision that precipitated the "mess" of which the president spoke had fundamental flaws.

One was the notion in the opinion for the court written by Justice Neil Gorsuch that college athletes ought to be paid from outside sources because they are vulnerable students exploited by the schools for which they compete. Drawing on a bit of pathos, the Justice pointed to the disproportionality of poor and Black students in high profile college sports who deserve a form of reparations for suffering the brunt of this type of peonage.

But it's a sham because it overlooks lucrative advantages and benefits they receive at colleges, including free tuition, room and board, tutoring, medical health services, travel for themselves and familial relatives, post-graduate internships, and expanded employment opportunities offered to them because of their notoriety, in addition to the training ground for possible professional  athletic careers for those relatively few  players of that caliber.

A second  even more flawed predicate of the Alston/NIL decision was that because colleges derive a great deal of money from their revenue-raising teams, mainly football and basketball, several hundreds of millions and even into the billions for schools in powerhouse conferences like the Big Ten in the Midwest and Southeast and Atlantic Coast conferences that house the three major Florida schools – University of Florida, Florida State, and  University of Miami − players deserve a share of that money or, as Justice Gorsuch propounded, a "measure of compensation more equivalent with the value they bring to their schools." This is an interesting proposition, a "spread the wealth" concept that sounds more socialistic, indeed Communistic than any member of the Supreme Court, let alone the six-member conservative core, would shudder if presented to them in any other format. The notion that those at the lower end of the economic strata deserve to be paid "more" proportionate to the wealth they produce for their employers was amplified  in a concurring opinion Issued by Justice Brett Kavanaugh (more about that later) calling for college athletes to receive "a fair share of the revenue" they produce, a blasphemy in many circles that the justices frequent or favor that low end wage earners deserve compensation proportionate to the income derived from their toil.

An equally fallacious feature of that court ruling that sparked the current "mess"  in college sports is the way that court pointed to the high salaries received by athletic directors and administrators, coaches, and athletic college, which somehow translates into the propriety of paying college athletes. This could lead to a slippery slope calling for raising compensation levels of lower tier employees from businesses whose top-level executives are making millions in salaries, stock options, and other beneficial devices. This is a version of the attack on the 1%-ers  that is so antithetical to conservative thinking.

But the real linchpin of the ruling and,  perhaps, its weakest link, came in the concurrence of Justice Kavanaugh, which attracted substantial attention for its sharp edges. In a phrase evoking Marxist philosophy (Karl, not Groucho), he stated that restriction and compensation for athletes is impermissible because "[N]owhere else in America can businesses get away with agreeing not to pay their workers a fair market rate." Apart from begging the question of what constitutes "fair market rate" because none exists, that kind of concept translated into the private sector would yield a lot of pay raises for employees at lucrative companies.

Further, the equating in the Kavanaugh  concurrence of  college athletes  to "workers" suggests  that there is employment relationship with the schools they attend, opening a door that colleges are loathe to recognize because it would make them susceptible to workers compensation, minimum wage and overtime pay requirements, liability claims for wrongdoing committed by athletes, subject to discrimination and harassment claims, labor unionization,  and other vestiges of employment relationships that the institutions abhor and fear. But deeming athletes as "workers" really changes the landscape of college sports.

But the Alston/NIL case is not alone to blame for the current malaise. Three years earlier, in Murphy v.  NCAA, the Justices invalided a federal law prohibiting  states from allowing legalized gambling on sports, which has led to the boom in that endeavor and  has been an underpinning of the growing interest in sports, which contributes to greater television ratings, resulting in higher advertising rates, and more money for the schools to disperse to the college to the athlete "workers" that play sports there for them. It's all part of the vicious circle that leads to the arms race in college sports. But instead of repelling  fandom, college sports enthusiasts are flocking to watch the games on television in ever-growing numbers as the gulf between the fans and the athletes widens economically.

Simply put, high-priced athletes do not displease the public but makes them even more eager to watch them perform, like high pay-outs to musical entertainers such as Taylor Swift lead to more demand, rather than less.

These ruminations aside, the ball is now in the president's court to try to fix the "mess," as he pledges he can do. He deserves credit for not punting, but whether he can pull it off would be like sinking a three-point basketball shot from the logo like Caitlin Clark.

How all of this plays out remains to be seen, but  whatever emerges is unlikely to stem the largesse of compensation to college athletes of prowess and profitability or the wagering on the games they play.

You can bet on that.

Marshall H. Tanick of Naples is a Constitutional and employment law attorney.

This article originally appeared on Fort Myers News-Press: Fixing the 'mess' that is college sports compensation | Opinion