We're having the wrong argument about Olympic sports and employment

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Yesterday marked yet another congressional hearing on NIL and college sports reform, this time originating in the House. Like the hearings before it, this one is highly unlikely to result in a bill that actually reaches a floor vote, and many of the arguments will sound familiar to anyone who has followed college sports reform efforts or the NIL Discourse over the last several years. I tuned in to listen to Friends of the Newsletter Chase Griffin and Dr. Victoria Jackson, but I didn’t watch the entire thing. I hope to spend a little more time with their testimonies shortly.

But there was one particular quote from NCAA president Charlie Baker that stuck with me.

While discussing what might happen if the NCAA lost in Johnson v NCAA, Baker is quoted by multiple reporters as saying that such a decision would “cost us about half to two-thirds of all the college sports programs around the country." He also added,

Is Baker right? Mostly. But I strongly believe this isn’t how this argument should be framed. Let’s dig into this for a second.

If every single D-I athletics program becomes classified as employees, Baker is correct in that large swaths of D-I schools will drop programs. There’s no way to make the math work, even if those athletes are paid salaries comparable to graduate assistants or other student-workers on campus. Huge chunks of D-I only sponsor particular sports for enrollment management purposes…to recruit and retain new students, and more importantly, collect more tuition revenue.

It doesn’t matter how much salary you trim from the basketball coach, athletic director, and associate VPs…you aren’t going to suddenly make Longwood Softball or Queens Track or Riverside Soccer anywhere close to self-sustaining. If salary, payroll tax, worker’s compensation, and other new obligations dent the enrollment revenue benefits for sponsoring larger D-I athletic departments, absent any other actions, it is reasonable to assume those sports are going to get cut in some way. Everybody involved in this debate should be honest about this fact.

If they wanted to, could Ohio State still afford to sponsor 30 intercollegiate sports and pay every athlete a salary, potentially a very comfortable one? Yes. It could require painful cuts in the department, and it would require the university to slash some services they currently provide to students, but they could choose to continue offering those programs. Could Youngstown State? No. I believe that’s magical thinking.

But this scenario also requires everybody to make multiple assumptions they don’t have to make

For one, do we have to assume that every single college athlete, even at the D-I level, has to be classified as an employee?

It’s true, that there are multiple legal challenges to the amateurism model that come from outside big-budget football and men’s basketball. The plaintiffs in Johnson are FCS football players that are not bringing in huge TV or ticket money, the men’s basketball players pushing for employment status and union recognition at Dartmouth don’t even get scholarships. If these athletes are considered employees, surely Ohio State football players or Kentucky basketball players would fall under that legal distinction as well.

But I don’t believe it is automatically given that every college athlete would automatically fit that distinction, even if the plaintiffs prevail in Johnson and both NLRB cases. It’s possible! But not guaranteed.

As I understand it, much of the employment argument for athletes like Dartmouth basketball players or Bucknell football players isn’t about revenue so much as it is about control. But if a school does not have the money or political will to pay an athlete like an employee, they could simply elect to not treat an athlete like an employee.

Rather than wholesale cut programs en masse, Baker, conference commissioners, or school-leaders could also push for a conversation about how to reform the obligations and terms of Olympic sport management to simply comply with the FLSA. That conversation has largely not happened in public. We could just ask Youngstown State swimmers to do less and still comply with the law.

If funding Olympic sports programs is so critical, and the NCAA acknowledges that it may not be able to do so because of costs…why isn’t the NCAA asking for help to contain costs?

Paying athletes actual salaries is going to be expensive, even if those salaries aren’t in the hundreds of thousands of dollars. There will be payroll taxes, worker’s compensation, the potential alteration of other tax benefits athletic departments enjoy, and a whole slew of other, hidden costs.

The vast majority, if not all of the NCAA’s pitch to lawmakers has been about shielding them from antitrust lawsuits, the obligation of directly paying athletes, and in assisting in the regulation of NIL. Winning on these fronts would allow the NCAA to save money on legal fees, save money on athlete payments, and potentially recapture some booster revenue that is currently flowing directly to athletes. All of that helps the ol’ bottom line.

But why isn’t the NCAA asking for an antitrust exemption to, say, bring the insane payments to coaches under control? Member institutions are clearly unable to slow down that cost curve by themselves, because every individual school has the incentive to flush more buyout money down the toilet. Why aren’t they asking for the ability to regulate administrator salaries? Or ask for literally anything that might help cut costs on anything outside of legal and athlete welfare?

The Drake Group has suggested expanding antitrust exemptions to include the ability to regulate coach and administrator spending. A former D-I AD suggested it in the story I just linked. I’ve heard other industry leaders float similar proposals.

If cost control was actually a major concern from college athletics leaders, you’d think that would also be part of their ask to lawmakers, no? That’d probably help pay for a few more sports programs.

Why do we assume there aren’t other ways to help offset the costs of Olympic sports programs if NCAA schools can’t fund them alone?

There’s a reason virtually every other developed country has a government department that helps directly pay for elite sports development. It’s really expensive. In America, we’ve delegated that responsibility to public and private institutions.

But we don’t have to do that forever. If colleges can no longer pay for their swim programs with revenues they pull from football, well, why can’t the federal government help offset those expenses? Dr. Jackson has suggested a nationwide sports gambling tax to help pay for swim and track programs. It’s possible the US Military could help offset some of those costs. Washington could decide to fully fund sport-specific federations, which in turn could provide grants to individual colleges. There are lots of other ideas out there too!

Those aren’t being seriously discussed in Washington, or even by the NCAA. If the status of Olympic sports is really that dire, then college leaders need to be having that conversation.

Absent any other changes, yes, widespread college athlete employment would almost certainly mean a decline in scholarship opportunities.

And you know what? I think that trade would be tragic. It would mean a failure of imagination and a failure in policymaking. But if that has to be the trade…I think that trade is worth it. Other strong advocates of a direct employment model for football and basketball players ought to grapple with whether they think that tradeoff is worth it too, rather than pretend it doesn’t exist.

But that doesn’t have to be the tradeoff, and we, as writers, fans, scholars, or administrators, shouldn’t let a few powerful voices define the conversation that way. Other solutions could be considered, solutions that could mitigate cuts and loss of opportunities.

Let’s not let the NCAA, Twitter Lawyers, Lawmakers, or other powerful voices off the hook. This is a debate that has real consequences for many, many, people. Everybody involved must be honest, and to seek ways to mitigate the harm that could come from unintended consequences.

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