Southpaw 42: College Athletes Can Finally Make Money. Now What?
Plus, an update on Trevor Bauer and some quick thoughts on Rachel Nichols.
Dear readers,
Last week, we wrote about MLB’s response to sexual assault allegations against Los Angeles Dodgers pitcher Trevor Bauer, and before we dive into some new material this week, we want to provide an update on the self-proclaimed “Bauer Outage.” The good news is that MLB has extended Bauer’s administrative leave while the league and police investigate the allegations. Of course, this doesn’t necessarily foretell a happy ending, but it does suggest that MLB might be coming to grips with the magnitude of the domestic violence problem within the sport. The really meaningful decisions—including whether Bauer will face criminal charges, and/or whether any MLB team will employ him—are still a ways off. As always, we’ll keep you posted.
On another note, the big story this week among people who pay too close attention to the sports media concerned a video recording made during last summer’s NBA bubble, and published this week by the New York Times, in which ESPN reporter Rachel Nichols (who is white) made some disparaging comments about her colleague Maria Taylor, who is Black. The video, which has circulated around ESPN for months, angered many Black employees who saw it as further proof that their outwardly-supportive white colleagues had no real intention of clearing the way for non-White talent at ESPN.
The story is complicated by the fact that the sports website Deadspin, whose entire editorial staff quit in the fall of 2019 and were replaced a few months later by writers more deferential to management, was sent the video last summer and decided not to publish it. Instead, they wrote a sneering piece with the headline “ESPN Creep Used 'The Jump' Video Feed To Secretly Record Rachel Nichols in Her Hotel Room — Video Got Sent to Us,” in which they compared ESPN’s treatment of Nichols to the wider media’s treatment of Hillary Clinton and Elizabeth Warren.
Lots of ink has been spilled parsing this clusterfuck of a situation, and don’t have a particularly original take on it, but the story did remind us why we started this newsletter in the first place: because so many of the major players in sports media are irrevocably screwed up. ESPN and “Vichy Deadspin” (as it is known in corners of the internet that we prefer) are two of the worst offenders. We hope that those of you who have stuck with us this far think we’re doing something a little more interesting than those two.
Apologies for the long intro, and happy reading.
-Ian and Calder
College athletes can sign endorsement deals. But what happens next is even more important.
In the week since the NCAA officially suspended its rules prohibiting athletes from selling the rights to their names, images, and likenesses, college athletes have wasted no time in uncapping their pens and signing on the dotted lines. On July 1, just hours after the rule change went into effect, Hanna and Haley Cavinder, twin sisters and Tik-Tok influencers who play on Fresno State’s women’s basketball team, signed the first major corporate sponsorship deal in college sports history—with the illustrious Boost Mobile, no less. Since then, social media has been plastered with announcements of new athlete-brand partnerships for products ranging from sweet tea to sweatshirts. The dollar figures of some of the newly-inked deals have been truly mind-boggling, reaching up to $2 million.
The NCAA’s new NIL rules are a step in the right direction towards advocates’ ultimate goal: ensuring fair compensation, guaranteed collective bargaining rights, and expanded labor protections for all college athletes. Nevertheless, the movement will have to pass through a number of intermediate steps before reaching that goal. Below, we’ve sketched out some of the short- and long-term steps that various actors—including the NCAA, Congress, and a nebulous slate of lawyers—need to take for college athletes to win their full economic rights.
1. Support athletes through the NIL process. The change in NCAA policy means that, in addition to school, sports, and their future careers, college athletes now have to manage their own personal brands. And as you might imagine, that’s not always easy for late teen/early 20s college students with little to no background in business management. As Sportico reported this week, the NCAA’s new endorsement rules have sowed confusion among some college athletes who are at risk of losing federal grants or need-based financial aid if they earn a certain amount of money through endorsement deals. Even those who are not receiving need-based aid will have to learn how to navigate the joys of state and federal tax codes.
The NCAA does allow athletes to hire agents and tax experts to help them with the business side of endorsement deals, but agents and boosters are subject to a complicated set of restrictions in their dealings with players. Moreover, as history has demonstrated on more than one occasion, agents and boosters do not always have players’ best interests at heart, even when following the letter of the league’s rules. In short, the NCAA has thrown its players into the financial deep end without a flotation device. If the organization actually wants players to fruitfully profit from their personal brand—and that’s a big if—it should supply them with financial education, business advisors, and any other tools they might need to stay on the right side of the IRS.
2. Sort out the legal and practical implications of the Supreme Court’s decision in NCAA v. Alston. In a narrow sense, the Court’s decision in Alston determined that the NCAA’s prohibition on “non-cash, educated-related benefits” for athletes—such as school materials, paid internships, and the like—violated federal antitrust law. But as Sportico also reported this week, the decision raises a complex set of legal questions about what counts as an “education-related benefit.” For example, the NCAA currently allows university athletic departments to take out disability insurance and loss-of-value riders that are triggered if an athlete sustains an injury that would significantly impact their future earnings as a professional. However, the NCAA only allows schools to pay for the premiums of these policies out of a specific pot of funds that the league allocates to each school, so as to limit the size of the premiums that schools can take out. In the aftermath of Alston, the legal status of these payments has become ambiguous, but according to some interpretations, it is precisely the sort of “non-cash, education-related benefit” that the NCAA is prohibited from limiting.
Unsurprisingly, injury insurance underwriters have quickly gotten in line behind this interpretation, and their eyes are popping out of their heads as they contemplate the massive payouts that they could earn if colleges are allowed to pay for insurance out of their normal athletic budgets. The broader implications of this market expansion are not yet clear, but you can bet that they would not be good for the athletes themselves. If anything, it would simply allow yet another group of people—namely insurance executives—to earn handsome profits off athletes' labor while the athletes themselves are still denied fair compensation. In the near future, athletes and their supporters will have to go to court to figure out how the Alston decision can benefit them, not insurance executives.
3. Pass the College Athlete Bill of Rights. The NCAA’s decision to suspend its NIL rules on July 1 was the policy equivalent of waving the white flag. Staring down the imminent enactment of 22 different state NIL rules (read: an enforcement nightmare for the NCAA), the league simply threw up its hand and told athletes to go at it on their own. That’s very different, though, than positively codifying athletes’ ability to profit from their NIL, as various states have done.
There are currently no fewer than seven separate NIL bills that have been introduced in Congress, but by far the most comprehensive is the College Athlete Bill of Rights, introduced last year by Sen. Cory Booker in the Senate and Rep. Janice Schakowsky in the House. In addition to codifying athletes’ ability to profit from NIL, the bill would also mandate that conferences share a portion of their commercial profits with athletes, dramatically expand medical coverage for athletes, and ensure that athletes are able to maintain their academic scholarships even after their athletic eligibility has expired, among other crucial reforms. The collapse of negotiations around NIL legislation at the end of June has created some uncertainty around the future of the bill itself, but the reforms contained in it remain as important as ever.
4. Create a union for college athletes. Ultimately, the most significant step toward guaranteeing full economic rights and protections for college athletes will be allowing these athletes to form a union. That, at least, is the purpose of a bill that Sen. Chris Murphy of Connecticut, Sen. Bernie Sanders of Vermont, and U.S. Reps. Jamaal Bowman (NY), Andy Levin (MI) and Lori Trahan (MA) introduced in Congress in May. The bill, called the “College Athlete Right to Organize Act,” would amend the National Labor Relations Act to classify college athletes as employees if they receive grant-in-aid or other forms of direct compensation from their schools. Importantly, the bill would also amend the NLRA to cover both private and public colleges, thereby allowing athletes to collectively bargain at any college, regardless of state restrictions on the collective bargaining rights of public employees.
Regardless of how it is achieved, unionization would allow athletes to join together to demand fair wages, better protections, expanded healthcare, and better academic opportunities. In short, it is absolutely critical to ensuring that college athletes receive the rights and protection that they deserve as workers.
RODNEY’S ROUNDUP
Do you want to read about . . .
. . . how the billionaire owners of professional sports teams take advantage of a federal tax loophole to avoid paying millions of dollars in taxes? “The Billionaire Playbook: How Sports Owners Use Their Teams to Avoid Millions in Taxes” by Robert Faturechi, Justin Elliott, and Ellis Simani in ProPublica (July 8, 2021).
. . . an extremely cool tennis publication that’s reshaping the sports media landscape? “Naomi Osaka Is Talking to the Media Again, but on Her Own Terms,” by Ben Smith in The New York Times (July 4, 2021).
. . . a predictable new chapter in the evolution of college football’s post-season?“Next up in the College Football Playoff, it’s greed vs. student-athletes. Bet on greed,” by John Feinstein in The Washington Post (July 1, 2021).
. . . how media coverage of college sports has caught up with its exploitative reality? “College sports was once ‘the scandal beat.’ Then amateurism became the scandal,” by Ben Strauss in The Washington Post (July 1, 2021).
. . . how one WNBA team set the bar for athletic activism in the professional leagues? “The Liberty’s Role in Making W.N.B.A. Players ‘Top Dogs’ of Activism,” by Seth Berkman in The New York Times (July 5, 2021).