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PAY THE PIPER, AND ALSO THE

PUNTER: AN ANALYSIS OF THE

COLLEGE-ATHLETE COMPENSATION

MOVEMENT

JOSHUA B. OPILA

I. INTRODUCTION

The fans all pile into the stadium on a crisp fall day on campus. The

overjoyed patrons, from alumni to youngsters, root on their university team

for four long quarters of football against the rival team from down the road.

On the last play of the game, the home-team’s star running back rushes across

the goal line, being tackled into the end-zone for the game-winning

touchdown. On that play, he sustains an injury that ruins his chances of

playing professional football. Years of high-paying salary, fame, and

opportunities for lucrative endorsement deals evaporate before his eyes.

Meanwhile, his jersey is sold to fans in the bookstore and right outside the

stadium. His talent drew tens of thousands of fans to the stadium that day,

each paying hundreds of dollars for their tickets. The logo on his jersey and

cleats brings in millions of dollars each year for the university. While the

school rakes in the cash, the player does not see a dime. All the while, he

risks his own body—which is often the source of his future livelihood—to

earn high revenues for the university.

Proponents of paying college athletes often refer to the above scenario.

This has been a hot topic for years, and recent changes in the legal landscape

have brought it to the forefront once again. This Note will address those

changes and analyze the arguments for and against paying college athletes.

Part I of this Note will examine the history of the debate on paying college

athletes. Part II will then move on to the most recent changes. Finally, Part

III will conclude with an analysis of the pros and cons of paying college

athletes and propose a framework for how they could be compensated going

forward.

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II. HISTORY ON THE ISSUE

A. THE NCAA CONCEPT OF “AMATEURISM,” AND A BRIEF

OVERVIEW OF THE CASE LAW HISTORY CONCERNING

COLLEGE ATHLETE COMPENSATION

1. The NCAA Uses Amateurism as a Shield to Avoid Paying Student-

Athletes

The debate on paying college athletes has always centered around one

arbitrary and loosely defined concept: amateurism.

This concept has long

been used by the National Collegiate Athletic Association (“NCAA”) to

defend their reasoning for why college athletes should not be compensated.

Judge Claudia Wilken even noted in her 2014 opinion in the case of

O’Bannon v. NCAA, “[t]he association’s current rules demonstrate that, even

today, the NCAA does not consistently adhere to a single definition of

amateurism.”

The NCAA uses certain terms of art, such as “student-athlete,”

to disguise the underlying fact that these individuals are essentially full-time

employees.

Such terms have a long history in the legal context, dating back

as far as 1957. For example, in State Compensation Insurance Fund v.

Industrial Commission, the Colorado Supreme Court found that a widow was

not eligible for workers’ compensation via an employer-employee

relationship after her husband had been killed playing football for his

university.

The court reasoned that the university “was not in the football

business and received no benefit from this field of recreation.”

2. There Are Emerging Inconsistencies Between Amateurism and the

Modern College-Athletics Industry

While such reasoning, faulty as it is, may have survived at a smaller state

school in the 1950s, the same reasoning surely could not apply in the modern

college athletics industry. Today, the top twenty most profitable college

football programs each generate over twenty-five million dollars in annual

profit, with the top seven programs taking home fifty million dollars or more

each year.

College football coaches also rake in astronomical salaries at the

highest level, with the twenty-five highest-paid coaches each making four

million dollars or more per year guaranteed, and several coaches each

making anywhere from six to nine million dollars per year guaranteed.

Jon Solomon, The History Behind the Debate Over Paying NCAA Athletes, ASPEN INST. (Apr. 23,

2018), https://www.aspeninstitute.org/blog-posts/history-behind-debate-paying-ncaa-athletes.

See id.

O’Bannon v. NCAA, 7 F. Supp. 3d 955, 1000 (N.D. Cal. 2014), aff’d in part, rev’d in part, 802

F.3d 1049 (9th Cir. 2015).

Solomon, supra note 1.

State Comp. Ins. Fund v. Indus. Comm’n, 314 P.2d 288, 289 (Colo. 1957).

Id. at 290.

Top 20 Most Profitable College Football Programs, ATHNET, https://www.athleticscholarships.net/

profitable-college-football-programs.htm (last visited Nov. 25, 2019).

James Crabtree-Hannigan, Dabo Swinney, Nick Saban and the 10 Highest-Paid College Football

Coaches in 2019, SPORTINGNEWS (Jan. 13, 2020), https://www.sportingnews.com/us/ncaa-

football/news/highest-paid-college-football-coaches-2019-dabo-swinney-nick-

saban/1tm0hym5dtina1ms02d4davsfp.

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These figures merely represent the coaches’ base salaries. In addition,

coaches have incentive-based compensation for winning, for example,

conference championships and national championships.

These bonuses are

quite substantial as well, reaching heights of one million dollars for winning

the football national championship in 2018.

Moreover, although college

football is far and away the poster child of the money-making college sports,

men’s college basketball, the runner-up, is also wildly successful.

Much

like college football, the top twenty-five men’s college basketball programs

each bring in eight-figure profits each year.

With these kinds of

astronomical profits, it is much harder to say today that the universities with

top-notch football programs are “not in the football business,” and

impossible to argue that they have “received no benefit from this field of

recreation.”

Rather, college athletics have consistently proven to be a major

revenue stream for the universities whose programs compete at the highest

level, and there is no reason to believe that this trend will slow down or

change direction anytime soon.

3. Case Law Precedent Suggests That the Amateurism Shield Prevents

College Athletes from Being Classified As Employees

Another seminal case in the development of college athlete

compensation, or lack thereof, is Waldrep v. Texas Employers Insurance

Association, in which a Texas Christian University (“TCU”) football player

was paralyzed in a 1974 football game.

The player, Kent Waldrep, relied on

charity to pay for his medical bills for years after TCU pulled his insurance

coverage a mere nine months after the injury.

Years later, in 1991, Waldrep

sued TCU and won under the theory that he was an employee of TCU, and

therefore he was covered under workers’ compensation laws.

However, on

appeal, the judgment was reversed on the finding that TCU “intended that

Waldrep participate at TCU as a student, not as an employee.”

The court

cited the NCAA’s formal definition of an amateur “student-athlete” to

support its conclusion that Waldrep could not be classified as an employee.

The formal definition provides that “an amateur student-athlete is one who

engages in athletics for the education[al], physical, mental and social benefits

he derives therefrom, and to whom athletics is an avocation.”

This crafted

Jesse Washington, #PayThatMan: Four Proposals for Compensating College Athletes,

UNDEFEATED (Jan. 9, 2018), https://theundefeated.com/features/college-football-championship-pay-that-

man-four-proposals-for-compensating-college-athletes.

See id.

See Cork Gaines & Mike Nudelman, The Average College Football Team Makes More Money than

the Next 35 College Sports Combined, BUS. INSIDER (Oct. 5, 2017, 12:36 PM),

https://www.businessinsider.com/college-sports-football-revenue-2017-10.

Brandon Wiggins, The 25 Schools that Make the Most Money in College Basketball, BUS. INSIDER

(Mar. 31, 2018, 4:18 PM), https://www.businessinsider.com/louisville-was-college-basketballs-biggest-

money-maker-in-2016-2018-2.

State Comp. Ins. Fund v. Indus. Comm’n, 314 P.2d 288, 290 (Colo. 1957).

Revenue of the NCAA by Segment from 2012 to 2019 (in Million U.S. Dollars), STATISTA,

https://www.statista.com/statistics/219605/ncaa-revenue-breakdown/ (last visited Feb. 18, 2021).

Solomon, supra note 1.

Id.

Waldrep v. Texas Emps. Ins. Ass’n, 21 S.W.3d 692, 701 (Tex. App. 2000) (emphasis removed).

Id.

Id. (citation omitted).

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532 Southern California Interdisciplinary Law Journal [Vol. 30:529

definition implies that college athletes’ primary objective is to be students at

the university, and their secondary objective is to engage in athletics in

pursuit of the various non-monetary benefits.

B. HISTORICAL ANALYSIS CONCERNING THE PERCEIVED

LEGITIMACY OF THE NCAA’S “AMATEURISM SHIELD” AGAINST

MOVEMENTS TO COMPENSATE COLLEGE ATHLETES

1. The Recurrence of “One-And-Dones” in College Basketball

Contradicts the NCAA’s Definition of Amateurism

One need not look far in order to contradict the NCCA’s definition of

amateurism. The advent of the “one-and-done” athlete is perhaps the best

example of why this definition of student first, athlete second is often not the

case. The term “one-and-done” came about to describe National Basketball

Association (“NBA”) prospects who, because of a 2006 NBA rule change,

go to college for only one year to be eligible for the NBA draft, which

requires prospects to be “at least 19 years old and [one] year removed from

high school,” and then drop out of college and declare for the draft.

The

incidence of such players going to college for one year and systematically

declaring for the NBA draft thereafter indicates that their true intention from

the start was never to be a student, but instead to gain access to the NBA.

Years of open outrage at the effects of this rule will likely lead to its

extinguishment,

but the “one-and-done” players nonetheless stand as an

example of why the definition of student-athletes offered by the NCAA is a

farce in certain instances.

2. College Football Players Prioritize Future Professional Prospects over

Playing for Their Universities

Moreover, in college football, there is also ample evidence that highly

touted prospects seek nothing more from their time at their respective

universities than to become eligible to play in the National Football League

(“NFL”). For instance, Ohio State University quarterback Cardale Jones

received backlash from the media in 2012 for tweeting, “[w]e ain’t come to

play school, classes are pointless.”

Jones’s statement reflects a subtle truth

about star players at universities with elite football programs, several of

Aaron Dodson, All the NBA Draft’s One-and-Done Lottery Picks: A Scorecard, UNDEFEATED (June

22, 2017), https://theundefeated.com/features/all-the-nba-drafts-one-and-done-lottery-picks-a-scorecard.

Christine Ravold, The Road to Athletic Glory Crumbles at the Gates of the Ivory Tower, AM.

COUNCIL TR. & ALUMNI (Mar. 5, 2018), https://www.goacta.org/the_forum/the-road-to-athletic-glory-

crumbles-at-the-gates-of-the-ivory-tower.

See Paul Woody, Woody: College Basketball Going from One-and-Dones to None-and-Dones to

Bidding Wars for Players, RICH. TIMES-DISPATCH (Apr. 23, 2019), https://www.richmond.com/sports

/college/woody-college-basketball-going-from-one-and-dones-to-none/article_e4539e68-b424-55ec-

bf46-e48423cb1329.html.

Ohio State Quarterback Thinks Student-Athletes Shouldn’t Have to Go to Class, Says ‘We Ain’t

Come to Play School’, NEW ENG. SPORTS NETWORK (Oct. 5, 2012, 2:01 PM), https://nesn.com/2012/10/

ohio-state-quarterback-thinks-student-athletes-shouldnt-have-to-go-to-class-says-we-aint-come-to-pla.

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whom leave school before graduating to pursue careers in the NFL.

Even

more recently, it has become a common practice for college football stars to

sit out from their bowl games at the end of the year in order to avoid injuries

that could jeopardize their ability to be drafted highly in the NFL.

The

evidence clearly suggests that these players are making a business decision

about playing or not playing a college football game in order to protect their

financial interests.

The fact that these players are turning their backs on

their universities for the biggest game of the year in order to protect their

own financial interests further contradicts the NCAA’s definition of student

first, athlete second. Actions like these suggest that these athletes are

protecting the financial interests born from their athletic talent first, and only

caring secondarily about their university and the experience of being a

college athlete at the highest level.

3. Universities Systematically Implement Ways for College Athletes to

Bypass Their Educational Requirements in Order to Allow the Athletes to

Focus on Their Sports

Furthermore, recent activity by a handful of universities with Division I

sports programs have exposed the student first, athlete second farce. For

example, the University of North Carolina (“UNC”), known for its highly

successful college basketball program, was recently found to offer “fake

classes that enabled dozens of athletes to gain and maintain their

eligibility.”

The NCAA defended UNC during the scandal by pointing out

that the university broke no NCAA rules because the classes were open to

non-athlete students as well.

However, “[a]n independent report

commissioned by North Carolina found that of the 3,100 students who took

the fake classes over 18 years, 47.4 percent were athletes.”

Given that UNC

is one of a handful of schools who have had several “one-and-done”

players,

it would make perfect sense if these classes were invented with

athletes in mind. If that were the case, then surely the student first, athlete

second definition would be inapplicable at UNC.

See What Percentage of NFL Players Are College Graduates?, REFERENCE,

https://www.reference.com/sports-active-lifestyle/percentage-nfl-players-college-graduates-

1cb66d290f53d545 (last updated Mar. 31, 2020).

Morgan Moriarty, Why Are So Many College Football Players Sitting Out Bowls? Just Look at the

Numbers, SBNATION (Dec. 22, 2018, 2:33 PM), https://www.sbnation.com/college-football/

2018/12/22/18127862/skipping-bowl-games-contracts.

Id.

Solomon, supra note 1.

Id.

See Quintin Schwab, UNC Basketball: The Five Carolina One-and-Dones, SBNATION: TAR HEEL

BLOG (Apr. 22, 2019, 3:00 PM), https://www.tarheelblog.com/2019/4/22/18310422/unc-tar-heels-mens-

basketball-one-and-done-nba-coby-white-nassir-little-marvin-williams-tony-bradley.

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4. The NCAA Has Made Concessions in the Area of Athlete

Compensation While Standing Strong on Their Amateurism Shield

More recently, the NCAA has made a handful of rule changes that allow

new benefits for college athletes, including stipends to cover the full cost of

attendance, unlimited meals, and in some conferences, extended medical

coverage for college athletes who get injured in-game.

These changes,

while surely signs of progress, were more of a response to complaints from

athletes about hardship than a movement towards offering the athletes what

many feel they deserve.

Moreover, the stipends are applicable to the

lucrative sports of football and men’s basketball, as well as to the “non-

revenue” sports, which further supports the notion that they are not intended

to be seen as athletes getting a piece of the pie.

5. Recent Court Decisions Suggest the Movement Towards Athlete

Compensation May Be Gaining Legal Support

The 1984 United States Supreme Court case National Collegiate Athletic

Ass’n v. Board of Regents provided some law in this area, all stemming from

five words in Justice John Paul Steven’s majority opinion: “[A]thletes must

not be paid.”

The case itself dealt with television contracts for college

football, but in his opinion, Justice Stevens happened to drop in those five

words, which the NCAA grasped onto to defend itself against athlete

compensation challenges for decades.

Twenty-one years later, in the 2015

case O’Bannon v. NCAA, the Ninth Circuit revisited the aforementioned case

and concluded that while Board of Regents stands for the proposition that the

NCAA must be allowed to preserve amateurism in college sports,

it does

not stand for the proposition that athletes must be completely prohibited from

being compensated for commercial “use of their names, images, and

likenesses.”

Many commentators saw the O’Bannon decision as a major

step in the direction of athlete compensation.

The case is a compelling

instance in which the NCAA’s long tradition of hiding under the student-

athlete guise was jeopardized, and in which a court started to seriously

question the legitimacy of the NCAA’s ability to outright prohibit college

athletes from being compensated.

More recent developments, discussed

next, may not have happened if not for O’Bannon.

Solomon, supra note 1.

See Chris Isidore, College Athletes Finally Getting Some Cash, CNN (Sept. 4, 2015, 1:43 PM),

https://money.cnn.com/2015/09/04/news/companies/extra-cash-college-athletes/index.html.

Id.

Nat’l Collegiate Athletic Ass’n v. Bd. of Regents, 468 U.S. 85, 102 (1984).

Solomon, supra note 1.

O’Bannon v. NCAA, 802 F.3d 1049, 1062 (9th Cir. 2015).

Id. at 1082 (Thomas, C.J., concurring in part, dissenting in part).

Solomon, supra note 1.

See id.

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III. ONGOING CHANGES IN NCAA ATHLETE COMPENSATION

A. THE “FAIR PAY TO PLAY ACT” REIGNITES THE MOVEMENT

TO COMPENSATE COLLEGE ATHLETES

1. The California Act Requires Universities to Allow Their Athletes to

Receive Income from Outside Sources and Prohibits Retaliatory Measures

In February 2019, California State Senator Nancy Skinner spurred the

largest development in the athlete compensation movement since O’Bannon

when she introduced the “Fair Pay to Play Act.”

The Act, which has since

been through the amendment process, passed by the California State Senate,

and signed by California Governor Gavin Newsom, “make[s] it illegal for

California universities to revoke an athlete’s scholarship or eligibility for

taking money.”

The Act, signed in late September of 2019, is set to go into

effect in January of 2023, provided it survives any legal challenges looming

on the horizon.

Under the Act, California athletes would be allowed to “earn

compensation for the use of their likeness, sign endorsement deals and hire

agents to represent them.”

This would not necessarily mean that the

universities would pay the athletes directly. Instead, it would essentially

allow the athletes to make money off the field, in much the same way that

more famous professional athletes do.

2. Notable Athletic Figures Endorse the “Fair Pay to Play Act”

This bill received tremendous support from professional athletes such as

Lebron James, who hosted Governor Newsom on his talk show for the

signing of the bill.

James, drafted in 2003, was one of the last players to

avoid playing in college, having graduated high school before the NCAA

rule changes that prompted the “one-and-done” movement took effect.

James has nonetheless been critical of the NCAA in the past, as he believes

players are forced to waste time in college while universities make millions

off of their talent.

James is one of several famous professional athletes who

are strongly in favor of the bill.

Draymond Green, a three-time all-star NBA

Jenna West, What Is the Proposed Calif. Bill to Pay NCAA Athletes? Fair Pay to Play Act

Explained, SPORTS ILLUSTRATED (Sept. 10, 2019), https://www.si.com/college/2019/09/10/fair-pay-play-

act-california-bill-ncaa-background-explainer.

Id.; Colin Dwyer, California Governor Signs Bill Allowing College Athletes to Profit from

Endorsements, NAT’L PUB. RADIO (Sept. 30, 2019, 11:13 AM), https://www.npr.org/2019/09/30/

765700141/california-governor-signs-bill-allowing-college-athletes-to-profit-from-endorsem.

West, supra note 41.

Dwyer, supra note 42.

See West, supra note 41.

Josh Schrock, Gavin Newsom Signs ‘Fair Pay to Play’ Act with LeBron James on ‘The Shop’, NBC

SPORTS (Sept. 30, 2019), https://www.nbcsports.com/bayarea/ncaa/gavin-newsom-signs-fair-pay-play-

act-lebron-james-shop.

See 2003 NBA Draft, BASKETBALL-REFERENCE, https://www.basketball-reference.com/draft/

NBA_2003.html (last visited Nov. 25, 2019).

See Dave McMenamin, LeBron James Calls NCAA ‘Corrupt’ in Wake of Scandals, ESPN (Feb.

27, 2018), https://www.espn.com/nba/story/_/id/22596036/lebron-james-calls-ncaa-corrupt-says-nba-

give-alternative.

Jenni Fink, LeBron James, Richard Sherman, Herschel Walker React to California’s Law Allowing

NCAA Athletes to Sign Endorsements, NEWSWEEK (Oct. 1, 2019, 12:15 PM),

https://www.newsweek.com/ncaa-california-law-student-athletes-lebron-james-herschel-walker-

1462385.

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536 Southern California Interdisciplinary Law Journal [Vol. 30:529

player, has also publicly supported the bill, claiming he believes it would

help bring “equality” to college athletics.

Green, unlike James, did play in

college, and played both basketball and football during his time at Michigan

State University.

Some athletes, like professional football player Richard

Sherman, go even further, suggesting the NCAA takes advantage of college

athletes and supporting the bill in hopes that it “destroys” the NCAA.

However, while the opinions of the pros are relevant in popular culture, the

real test will be whether any prominent legal challenge can be mounted

against the bill.

3. The NCAA Initially Resists the Act, but Later Backs Down to the

Movement’s Newfound Momentum

The NCAA was initially stout in responding to the California bill, as they

threatened to disqualify California universities from competing for national

championships in the event that the bill was passed.

Almost immediately

after the California bill passed, and before the NCAA had time to come up

with a formal response, several other states began crafting legislation similar

to that which passed in California.

Most of the proposed legislation centered

around ideas similar to those found in the California bill.

However, some

states, like New York, suggested changes that would have the NCAA

compensating college athletes directly.

In late October 2019, in what was likely a response to the

aforementioned slew of legislative movement across the states, the NCAA

announced that its board of governors had voted to allow athletes to “benefit

from the use of their name, image and likeness.”

NCAA President Mark

Emmert said in a statement on the day of the vote that the NCAA is “uniquely

positioned to modify its rules to ensure fairness and a level playing field for

student-athletes,” and that “[t]he board’s action today creates a path to

enhance opportunities for student-athletes while ensuring they compete

against students and not professionals.”

While Emmert sounded

enthusiastic about the direction of the NCAA, in all reality, this move was

likely forced out of the NCAA’s hand by the mounting legislative pressure.

Id.

Jeremy Bauer-Wolf, New Bill May Allow Athlete Compensation, INSIDE HIGHER ED (June 26,

2019), https://www.insidehighered.com/news/2019/06/26/ncaa-may-not-allow-participation-

championship-games-if-california-bill-passes.

See generally Charlotte Carroll, Tracking NCAA Fair Play Legislation Across the Country, SPORTS

ILLUSTRATED (Oct. 2, 2019), https://www.si.com/college/2019/10/02/tracking-ncaa-fair-play-image-

likeness-laws.

See generally id.

Jabari Young, Florida and NY Push Bills to Compete with California’s NCAA ‘Pay to Play’ Law,

CNBC (Oct. 24, 2019, 2:29 PM), https://www.cnbc.com/2019/10/24/florida-and-ny-push-bills-to-

compete-with-californias-ncaa-pay-to-play-law.html.

NCAA Votes to Allow College Athletes to Make Money from Their Fame, GUARDIAN (Oct. 29,

2019, 2:18 PM), https://www.theguardian.com/sport/2019/oct/29/ncaa-votes-college-athletes-benefit-

fame-name-image-likeness.

Clarissa-Jan Lim, The NCAA Will Let Student-Athletes Make Money off Their Names and Images,

BUZZFEED NEWS (Oct. 29, 2019, 3:51 PM), https://www.buzzfeednews.com/article/clarissajanlim/ncaa-

student-athletes-profit-endorsement.

See id.

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The move is set to be implemented in 2021, subject to the NCAA’s three

major divisions finding a way to craft rules that allow for athletes to profit

while still maintaining rules regarding amateurism.

NCAA board chair

Michael V. Drake emphasized that “change must be consistent with the

values of college sports and higher education and not turn student-athletes

into employees of institutions.”

While the NCAA’s vote is reassuring, it

does not necessarily signal victory for college athletes just yet.

Some

believe it is likely that the NCAA’s vote was more of an effort to control the

course of the compensation movement than a progressive change of heart in

favor of the athletes.

It remains to be seen how steadfast the NCAA will be

in implementing the changes that it has promised and how much the athletes

will benefit in the end from any changes that are made.

4. The United States Congress Is Currently Looking into Legislative

Responses to the Recent Movement Seen in State Legislatures

In the wake of California’s Fair Pay to Play Act, several states around

the country have been considering similar legislation.

Seeing this, the

United States Congress jumped into action.

In a Senate hearing in February

2020, NCAA President Mark Emmert went on record, asking Congress to

implement restrictions on college athletes’ ability to earn compensation.

The NCAA’s position is that federal regulation is necessary because, as it

stands now, some states have pursued legislation in this area, while others

have yet to do so.

This could lead to a problem with college recruiting,

where athletes will be financially swayed to choose programs in states with

favorable laws, leaving universities in the other states at a disadvantage.

While this concern is entirely legitimate, there is significant doubt as to the

NCAA’s intentions with this federal push. It seems entirely plausible that the

NCAA knows their back is against the wall with the recent movement by

state legislatures and is attempting to have Congress come down against any

college athletes in any state being paid. Time will tell what the result of this

federal push will be, but in the meantime, the pressure remains highly

concentrated on the NCAA.

NCAA Votes to Allow College Athletes to Make Money from Their Fame, supra note 57.

Id.

Roxanne Jones, The NCAA Blinked, and It’s About Time, CNN (Oct. 30, 2019, 10:44 AM),

https://www.cnn.com/2019/10/30/opinions/ncaa-athlete-compensation-fair-pay-to-play-act-

jones/index.html.

Id.; see Steve Almasy, Here’s What Some Athletes Think About the NCAA Move to Let College

Players Get Paid, CNN (Oct. 30, 2019, 7:21 AM), https://www.cnn.com/2019/10/29/us/ncaa-athletes-

compensation-reactions/index.html.

See Jones, supra note 62.

Ben Nuckols, NCAA President Presses U.S. Senate for ‘Guardrails’ on Athlete Pay, HARTFORD

COURANT (Feb. 11, 2020), https://www.courant.com/sports/college/hc-sp-mark-emmert-senate-hearing-

ncaa-pay-20200211-20200211-clr3ohfrs5ckppbhiicxfe7mca-story.html.

See id.

Id.

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B. THE NCAA HAS LEGITIMATE REASONS TO BE CONCERNED ABOUT

THE MOVEMENT TO COMPENSATE COLLEGE ATHLETES

1. The NCAA Is at Least Partially Motivated by the Federal Income Tax

Implications of Paying College Athletes

Perhaps the greatest concern for the NCAA and its member universities

regarding this movement towards compensating college athletes is Sam

reaching further into their pockets. College sports programs currently enjoy

501(c)(3) nonprofit organization status.

However, there is some concern

that paying a salary to college athletes would risk forfeiting this status, since

education must be a “charitable activity” in order to qualify for 501(c)(3) tax

treatment.

Even if the universities were to not pay the athletes directly, but

instead allow them to profit off of their own likeness from outside sources,

there is no definitive guidance or precedent that confirms that the 501(c)(3)

tax status would be maintained.

Additionally, universities are not required

to pay payroll taxes on the dollar amount of the scholarship they offer to

student athletes, but they would have to pay payroll taxes to the federal

government on the dollar amount of salary they would pay those same

athletes.

The NCAA and its member universities have a substantial

financial interest in maintaining the amateur status of college athletes in

order to avoid this tax liability. This helps explain why the NCAA has

stressed that the divisions must come up with rule changes that are

“consistent with the values of college sports and higher education.”

The

NCAA’s goals could have less to do with preserving the spirit of college

athletics and more to do with protecting their profit from the hands of the

federal government.

IV. ANALYSIS ON COLLEGE ATHLETE COMPENSATION GOING

FORWARD

It appears that, going forward, college athletes will begin to see at least

some form of compensation for their talents and their performance. It is

unclear exactly how much and to what extent they will be compensated and

how this will affect the popularity and sanctity of college sports. The

following is an analysis of the pros and cons of the movement, including a

proposed resolution for compensating college athletes going forward.

John Thelin, Paying College Athletes, INSIDE HIGHER ED (Feb. 12, 2018),

https://www.insidehighered.com/views/2018/02/12/impact-college-sports-programs-if-athletes-are-paid-

opinion.

Id. (emphasis removed).

See id.

Id.

NCAA Votes to Allow College Athletes to Make Money from Their Fame, supra note 57.

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2021] Pay the Piper, and Also the Punter 539

A. THE “FAIR PAY TO PLAY ACT” IS A STEP IN THE RIGHT DIRECTION,

BUT DOES NOT GO FAR ENOUGH IN PROTECTING THE FINANCIAL

INTERESTS OF COLLEGE ATHLETES

1. The Act Should Also Include a Provision That Allows Universities to

Directly Compensate Their Athletes

The California State Legislature and Governor Newsom had the right

idea in mind when drafting the Fair Pay to Play Act. Denying college athletes

the ability to earn money on their likeness and image is an arbitrary and

pointless rule that should have never been put into effect. However, the Act

does not fulfill its full potential. The NCAA should also be prohibited from

disallowing the direct compensation of college athletes by their universities.

Both the fairness argument and the anti-corruption argument are more than

compelling enough to justify such a change, and the result would almost

certainly create a more even playing field in the top-grossing college sports.

It is almost universally accepted that college athletes are already paid under

the table by universities in the recruiting process to sway the athletes to

attend one school instead of another. Allowing them to instead be paid

according to a set of well-designed, clearly-written, and strictly-enforced

rules could increase transparency and reduce corruption.

B. ALLOWING COLLEGE ATHLETES TO RECEIVE INCOME HAS FAR MORE

BENEFITS THAN DRAWBACKS

1. Allowing College Athletes to Receive Income Would Lessen the

Tremendous Burden These Individuals Face in Balancing School and Their

Sports

Allowing college athletes to be compensated would eliminate, or at least

reduce, many financial concerns for the athletes while they are in college. A

large percentage of college athletes come from underprivileged families and

communities and do not have the resources to be supported or support

themselves for several years while they are in college.

As a result, many

college athletes are forced to work low-paying jobs on the side or take extra

loans to cover basic expenses.

Balancing school, athletics, and a job can

subject college athletes to far more stress than the average adult deals with

on a daily basis.

The athletes must dedicate a certain number of hours to

their sports each week, and often the school makes money, just as an

employer would. Greater effort exerted by an athlete at practice and more

hours spent mastering their craft tend to lead to performance at a higher level,

which can in turn lead to championship appearances, meaning more airtime

and revenue for the university. Thus, athletes should be allowed to earn

Armstrong Williams, Williams: The Exploitation of College Athletes, WASH. TIMES (Apr. 6, 2014),

https://www.washingtontimes.com/news/2014/apr/6/williams-the-exploitation-of-college-athletes.

Id.

See Ann Kearns Davoren & Seunghyun Hwang, Mind, Body and Sport: Depression and Anxiety

Prevalence in Student-Athletes, NCAA SPORT SCI. INST. (Oct. 8, 2014, 10:09 AM),

http://www.ncaa.org/sport-science-institute/mind-body-and-sport-depression-and-anxiety-prevalence-

student-athletes.

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540 Southern California Interdisciplinary Law Journal [Vol. 30:529

compensation in return for their time committed to their sports, just as an

employee is compensated when their activities make money for the

employer. Moreover, allowing players to be compensated could increase the

likelihood that they stay in school long enough to earn their degrees. Now

more than ever, college athletes at the highest levels leave school early to

pursue a career in a professional league for their sport.

2. Allowing College Athletes to Receive Income Would Lead to Greater

Rates of Graduation and Academic Achievement Among College Athletes

Moreover, many college athletes quit their collegiate athletics career due

to the overwhelming stress that comes from balancing school and athletics,

which can have grave financial consequences, such as loss of scholarship.

Universities have good reason to adopt any changes that could make life

more manageable for their student athletes. On a related note, the vast

majority of college athletes do not become professionals, so earning their

degree should be of utmost importance, and any incentive to do so should be

pursued. Furthermore, the average professional football player’s career is

less than four years,

and the average professional basketball player’s career

is less than five years.

Therefore, incentivizing college athletes to stay in

school long enough to earn their degrees could also be highly beneficial for

those who do become professional athletes by providing them with broader

opportunities after their short stint in professional sports is over. If the NCAA

truly has furthering their athletes’ education as their primary focus, then

increasing the chances that an athlete graduates from college should be a no-

brainer.

3. Allowing College Athletes to Receive Income Would Reduce the

Frequency of Scandals Surrounding NCAA Rules Violations by Allowing

for More Transparency and Efficiency

Allowing college athletes to be compensated would also eliminate, or at

least reduce, the scandals surrounding NCAA rules violations at NCAA

member universities. From the “Fab Five” in the 1990s

to the recent

controversy around Brian Bowen, a basketball recruit for the University of

Louisville,

college sports have had several scandals about players and

See Blake Williams, The Numbers Behind the Record 107 College Football Players Leaving for

The NFL, FORBES (Jan. 22, 2016, 2:20 PM), https://www.forbes.com/sites/blakewilliams3012/

2016/01/22/the-numbers-behind-the-record-107-college-players-leaving-early-for-the-

nfl/#37fef69040c0.

Griffin Rubin, Why Athletes Drop Their Sport, LRT-SPORTS (May 9, 2019),

https://www.lrtsports.com/blog/why-athletes-drop-their-sport.

Christina Gough, Average Playing Career Length in the National Football League, STATISTA (Sept.

10, 2019), https://www.statista.com/statistics/240102/average-player-career-length-in-the-national-

football-league.

Aaron J. Lopez, Life After NBA Comes Sooner Than Many Players Think, NBA: DENVER NUGGETS

(June 10, 2010), https://www.nba.com/nuggets/features/junior_bridgeman_20100610.html.

The “Fab Five” is a commonly used moniker for a group of five highly-touted University of

Michigan basketball players that were compensated by University of Michigan boosters in violation of

NCAA athlete compensation rules. See Michigan Forfeits Victories from Five Seasons, ESPN (Nov. 11,

2002, 10:04 AM), https://www.espn.com/ncb/news/2002/1107/1457316.html.

Brian Bowen is known as the central figure in a more recent NCAA basketball scandal in which

several universities were found to have either directly or indirectly bribed sought-after basketball recruits

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2021] Pay the Piper, and Also the Punter 541

recruits being paid to attend a certain university in violation of NCAA rules.

It is almost universally acknowledged today that a black market exists for

paying college athletes to attend a certain university.

However, the NCAA

still punishes the athletes who get caught accepting bribes by revoking their

scholarships or eligibility to play.

Whether one comes out in favor of or

against paying college athletes, all of the athletes should be subject to the

same rules. Thus, if the NCAA cannot come up with a way to effectively stop

college athletes from being compensated, they should allow it to happen. It

is a basic tenet of any respected legal system that all people should be treated

equally under the law. The NCAA, being the enforcer here, has the

responsibility to administer justice by holding all parties guilty of violating

their rules accountable. Since we have ample reason to believe that they have

failed to do so effectively,

it would seem fairer to allow the players to be

compensated, instead of acknowledging that it universally happens and then

arbitrarily choosing which parties to punish based on who gets caught. At

least if it is allowed, it can be better monitored and regulated, which is a step

in the right direction from the black-market dealings that occur now.

4. Allowing College Athletes to Receive Income Would Lead to

Increased Competition and Overall Improvement for College Athletics

Critics of the movement to compensate college athletes often suggest

that allowing college athletes to be paid would result in concentration

towards the top, where the most elite programs would out-bid all of the other

schools, resulting in super teams that no other school could ever dream of

competing with. We already see this to a large extent in college sports,

namely in football,

due to the aforementioned under-the-table money

funneled to players. As mentioned earlier, this problem could be mitigated

with strict policies allowing, but monitoring, player compensation. However,

contrary to the critics’ position, allowing college athletes to be compensated,

if done correctly, could lead to far greater levels of competition among

schools with much less concentration at the top. To determine this process,

one need look no further than the world of professional sports. Professional

leagues like the NFL, NBA, National Hockey League (“NHL”), and Major

League Baseball (“MLB”) all achieve great levels of competition, meaning

that the playing field is quite even and all teams have the potential for

success. In professional sports, teams go from being in the bottom tier to

to play basketball at their university over others in violation of NCAA athlete compensation and recruiting

rules. Ricky O’Donnell, Brian Bowen’s FBI Scandal Shows the Many Ways a College Basketball Recruit

Can Get Paid, SBNATION (Oct. 5, 2018, 1:21 PM), https://www.sbnation.com/college-

basketball/2018/10/5/17941060/brian-bowen-fbi-scandal-offers-creighton-texas-arizona-louisville-nike-

adidas.

Andy Staples, What Has the NCAA–or Anyone–Learned from the College Basketball Black

Market’s Time on Trial?, SPORTS ILLUSTRATED (May 9, 2019), https://www.si.com/college/2019/

05/09/ncaa-trial-fbi-bribery-corruption-mark-emmert.

Id.

See, e.g., Jim Vertuno, Bribery Scandal Exposes Sports Side Door to Admissions, AP NEWS (Mar.

12, 2019), https://apnews.com/f49d69167aea4ec6aa5fe3b7d678e3f5.

Id.

See, e.g., 2021 Football Team Rankings, 247SPORTS, https://247sports.com/Season/2021-

Football/CompositeTeamRankings/ (last updated Apr. 18, 2021, 3:00 PM); 2021 Basketball Team

Rankings, 247SPORTS, https://247sports.com/Season/2021-Basketball/CompositeTeamRankings/ (last

updated Apr. 19, 2021, 12:30 PM).

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542 Southern California Interdisciplinary Law Journal [Vol. 30:529

winning championships in rather short spans of time on a regular basis.

One

of the main reasons why this occurs more often in professional sports is the

free market system. Players have the ability to enter free agency and receive

offers to play for various teams before ultimately signing in one place.

course, on occasion this does lead to clear instances of players making their

decisions based on a desire to win championships, rather than a desire to

receive the best return on their talents.

These instances can have a

devastating effect on the competitive atmosphere of a league. For example,

Kevin Durant’s 2016 move to join the Golden State Warriors, a team who

the year prior had just set the NBA record for most wins in a season, was

universally acknowledged as “soft,” and many believe it ruined the league’s

competitive atmosphere for years to come because the Warriors essentially

became unbeatable.

Nonetheless, these instances remain the exception to

the general rule that free market systems improve competitive levels.

Additionally, college sports could institute salary caps as most

professional leagues do.

Salary caps would even the playing field in college

athletics, as teams would not be able to secure all of the good recruits each

year because the recruits would demand to be paid more than the salary cap

would allow.

This would go a long way towards leveling out the top-heavy

playing field we are currently seeing. For example, in college football

recruiting for the high school class of 2021, there were thirty-four recruits

that earned a “five-star” designation as prospects for playing college football

in the next year.

However, the top five teams, out of well over one hundred

division one programs, signed twenty-one of those recruits.

That is almost

two-thirds of the top-level talent going to only five programs. If salary caps

were instituted, these problems would be alleviated because elite programs

like Alabama would not be able to pay multiple “five-star” recruits in every

recruiting class, so those recruits would go elsewhere, and the talent would

spread more evenly.

A well-implemented free market system in college

football would lead to an increased level of competition in college athletics,

which in the long run would be good for the players, the fans, and the NCAA

and their affiliate members.

Nick Dimengo, Biggest 1-Season Team Turnarounds Ever, BLEACHER REP. (Aug. 20, 2015),

https://bleacherreport.com/articles/2539382-biggest-one-season-team-turnarounds-ever.

Joel Umanzor, Off the Record: Sports Mentality Shifts as Free Market Thrives, ADVOCATE (Feb.

13, 2019), https://cccadvocate.com/10379/sports/off-the-record-sports-mentality-shifts-as-free-market-

thrives.

See Marc J. Spears, ‘Strength in Numbers’ Convinced Kevin Durant to Join Warriors, UNDEFEATED

(July 4, 2016), https://theundefeated.com/features/strength-in-numbers-convinced-kevin-durant-to-join-

warriors.

Shaun Holkko, Opinion: Kevin Durant’s Selfishness Has Ruined the NBA, STATE HORNET (June 9,

2018), https://statehornet.com/2018/06/opinion-kevin-durants-selfishness-has-ruined-the-nba.

Washington, supra note 9.

See id.

2021 Top Football Recruits, 247SPORTS, https://247sports.com/Season/2021-Football/

CompositeRecruitRankings/?InstitutionGroup=HighSchool (last visited Apr. 19, 2021).

2021 Football Team Rankings, supra note 88.

See id.

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2021] Pay the Piper, and Also the Punter 543

5. Allowing College Athletes to Receive Income Would Potentially Save

College Athletics from the Rise of Alternative Leagues

A notable trend has emerged lately in which high school athletes are

bypassing the college athletics industry as a whole by choosing alternative

leagues. For instance, some high school basketball players with professional

league prospects have been spending their one year out of high school, as

required by NCAA rule, in European professional basketball leagues.

These

young men approach this strategy with hopes of going to the NBA after a

year or two of playing overseas.

However, in the overseas leagues, they are

already paid professionals, and they avoid the harsh rules and risk of scandal

inherent in the college basketball system.

100

This is a relatively new

phenomenon, but time will tell how large of a risk it may pose to the NCAA

if they do not change their rules soon. Furthermore, there has even been talk

amongst historically black colleges and universities of starting a professional

league for young men to play basketball in between high school and

potentially joining the NBA.

101

These leagues would offer only modest

compensation to athletes, and there is no guarantee that fans would follow

them, but they nonetheless may serve their purpose of forcing the NCAA

into action.

102

Another interesting development in this area surrounds the brand new

XFL, an alternative professional football league that made its first debut in

early 2000 and second debut in 2020. The NFL requires players to be

removed from high school for three years before becoming eligible to play.

103

However, the XFL has no such requirements.

104

It is uncertain whether

players would be comfortable making the jump straight from high school to

the XFL. There appears to be some concern about high school players’ ability

to adapt to the fast pace of the XFL.

105

Furthermore, there would be risk

involved in going directly to the XFL, because this would compromise a

player’s ability to go back into college football in the future, as they would

forfeit their amateur status.

106

Moreover, given that the XFL is a brand-new

league, there is uncertainty about how popular and successful it will be, and

therefore how much exposure the players can get to show their skills in order

to one day transition to the NFL.

107

It is worth noting that the XFL was forced

to shut down midway through its 2020 season due to the COVID-19

pandemic and filed for bankruptcy shortly thereafter.

108

However, the league

was acquired by an investor group in the summer of 2020 and plans to return

Kevin Flaherty, Top Prospects Who Decided to Go Straight Overseas, 247SPORTS (May 28, 2019),

https://247sports.com/Article/Top-recruits-to-play-overseas-RJ-Hampton-New-Zealand-NBL-

132375603.

Id.

100

See id.

101

Washington, supra note 9.

102

Id.

103

David Kenyon, Can the XFL Be a Viable Alternative for College Football Players, BLEACHER

REP. (Feb. 28, 2020), https://bleacherreport.com/articles/2878259-can-the-xfl-be-a-viable-alternative-

for-college-football-players.

104

Id.

105

Id.

106

Id.

107

Id.

108

Dade Hayes, XFL Will Skip 2021 Season Before Returning In 2022, DEADLINE (Oct. 1, 2020,

10:23 AM), https://deadline.com/2020/10/xfl-will-skip-2021-season-returning-2022-1234589516.

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544 Southern California Interdisciplinary Law Journal [Vol. 30:529

in 2022.

109

Despite this uncertainty, the XFL being a threat to college football

is an interesting line of thought, and one that the NCAA should definitely

pay attention to.

6. Allowing College Athletes to Receive Income Would Be More

Consistent with the Overall Concept of Fairness

Several proponents of paying college athletes like to allude to a greater

concept of fairness in crafting their arguments. Such proponents point to the

astonishing profits that the top college football and basketball programs

bring in and argue that the college athletes who are fundamentally

responsible for these profits are entitled to a share.

110

Not only do the current

rules prohibit college athletes from sharing in the profits of their university,

but they also prevent them from earning money from outside sources. For

instance, athletes like Katelyn Ohashi, a former University of California, Los

Angeles (“UCLA”) gymnast, are prohibited from earning advertising money

when videos of their sports go viral on YouTube.

111

Many college athletes

play sports for love of the game alone, but still others have the primary goal

in mind of moving on to the next level after college and earning a living off

of their talents in sports. From a fairness standpoint, it is compelling to argue

that these college athletes should be allowed to demand a slice of the pie that

the universities bring in. They are largely responsible for the revenue from

tickets, licensed clothing, and the like. It is a fundamental American ideal

that someone with a talent or skill in a given trade should be able to monetize

that talent or skill if a market exists. However, the NCAA has barred college

athletes from doing this very thing for decades. A Yahoo poll from 2017

found that forty percent of people agree that college athletes are being

exploited for their talents.

112

Just two years later, a 2019 poll found that fifty-

two percent of people agree that college athletes at the highest levels should

be allowed to earn money from their talents.

113

After the issue began receiving

more mainstream coverage throughout the latter half of 2019, an early 2020

study showed that two-thirds of people polled were in favor of allowing

college athletes to earn compensation from outside sources, and half were in

favor of universities compensating the athletes directly.

114

As the college

athletics industry continues to grow, more and more people are buying into

the fairness argument and taking on the opinion that college athletes deserve

compensation. Chairman of the NCAA board Michael V. Drake even referred

to the association’s recent announcement of coming changes to allow college

109

Id.

110

Spencer Bokat-Lindell, Should College Athletes Be Allowed to Get Paid?, N.Y. TIMES (Oct. 1,

2019), https://www.nytimes.com/2019/10/01/opinion/california-student-athletes-paid.html.

111

Id.

112

Daniel Roberts, Poll: More People than Ever Believe College Athletes Should Be Paid, YAHOO!

FIN. (Mar. 24, 2017), https://finance.yahoo.com/news/poll-more-people-than-ever-believe-college-

athletes-should-be-paid-172810243.html.

113

Scott Rasmussen, 52 Percent of Voters: Pay Top College Athletes, NEWSMAX (Mar. 27, 2019, 4:26

PM), https://www.newsmax.com/scottrasmussen/merchandise-players-royalties/2019/03/27/id/909006.

114

Michael T. Nietzel, Americans Now Overwhelmingly Support College Athletes Earning

Endorsement and Sponsorship Money, FORBES (Feb. 11, 2020, 8:43 AM),

https://www.forbes.com/sites/michaeltnietzel/2020/02/11/americans-now-overwhelmingly-support-

college-athletes-earning-endorsement-and-sponsorship-money/#39feb40648e2.

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2021] Pay the Piper, and Also the Punter 545

athletes to profit off of likeness as “embrac[ing] change.”

115

Given that the

NCAA itself even acknowledges its weight, the fairness argument is strong

on this issue.

C. COLLEGE ATHLETES SHOULD BE ALLOWED TO RECEIVE INCOME

DIRECTLY FROM THEIR UNIVERSITIES, IN ADDITION TO BEING ALLOWED

TO RECEIVE INCOME FROM OUTSIDE SOURCES

1. The Tax Implications of Such a Switch Cannot Be Ignored

Even if we are convinced that college athletes should be paid, one glaring

question still remains: how would the NCAA go about implementing rules

that allow the athletes to be directly compensated by their schools? This is a

sticking point in the argument for allowing college athletes to be

compensated. As mentioned earlier, allowing college athletes to be directly

paid, like giving them a salary, could have huge tax implications for the

universities. An unavoidable consequence of allowing schools to directly

compensate college athletes would be the Medicare and Social Security taxes

that would attach to such salaries.

116

While not trivial, these would amount to

less than ten percent of what the athletes themselves would be paid, so it

would be economically feasible for the schools to bite the bullet on such

costs.

117

However, the less trivial factor is the risk of losing 501(c)(3)

nonprofit status.

118

This could amount to millions of dollars in tax liability for

athletic departments of universities that compete at the highest levels.

However, tax scholars seriously doubt whether paying college athletes would

actually result in forfeiture of this status.

119

Nonetheless, the risk of exposing

the athletics program to that kind of tax liability remains the strongest

counterargument against paying college athletes.

2. Universities Could Bear the Risk of Taxation by Simply Beginning to

Pay Their Players and Waiting for a Court to Decide

There are a few strategies that universities could implement to deal with

the risk of this tax liability. Unsurprisingly, the first would be to begin paying

college athletes a salary and hope that no court hands down a decision

destroying the athletic department’s 501(c)(3) nonprofit status or that the

Internal Revenue Service does not issue guidance suggesting otherwise.

Obviously, this is the riskiest possible strategy, but it also is the easiest for

universities, and, according to tax scholars, there is good reason to believe

that this strategy could be successful.

115

NCAA Votes to Allow Student Athletes to Get Paid, TMZ SPORTS (Oct. 29, 2019, 12:27 PM),

https://www.tmz.com/2019/10/29/ncaa-board-paying-college-athletes-vote.

116

Thelin, supra note 70.

117

See id.

118

See id.

119

See id.

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546 Southern California Interdisciplinary Law Journal [Vol. 30:529

3. Universities Could Attempt to Classify Athlete Compensation as a

Stipend

Alternatively, the universities’ athletics departments could try to classify

payments to the athletes as some kind of stipend. College athletes have

already been receiving cost-of-living stipends and the like since the 2015

NCAA rule change and no courts have taken issue with this to date.

120

Granted, these stipends have been for smaller amounts than what college

athletes would likely be given for a salary. Moreover, such stipends are

probably more easily justified when they are meant to be reimbursing the

students for a cost they incur as part of attending the university and playing

a sport there. Nonetheless, this strategy could work, and is probably more

likely to work, than just classifying the compensation as a salary. Moreover,

it also has the potential to avoid triggering Medicare and Social Security tax

liability.

4. Universities Could Coordinate with Boosters to Have the Boosters Pay

Their Athletes Directly

A third strategy, and likely the best one, would be for the NCAA to allow

boosters to directly compensate college athletes. For those not familiar with

the term, boosters are wealthy fans, and often alumni, who donate large sums

of money to the athletics programs of their beloved alma maters.

121

This

includes the wealthiest of the wealthy boosters who donate millions of

dollars and are responsible for things like state-of-the-art training facilities,

122

as well as the average season ticket holder who donates a few hundred dollars

here and there.

123

Currently, it is against NCAA rules for boosters to donate

any amount of money or provide any direct benefit to college athletes or

recruits.

124

It is widely accepted that these rules are regularly broken by

universities with the most elite and competitive college athletics programs

for sports like men’s football and men’s basketball.

125

FBI investigations are

not a new phenomenon in college athletics, dating back to the University of

Michigan’s “Fab Five,” and in all likelihood, even before that.

126

High-level

college athletes are regularly caught with high-end items that raise suspicion

and trigger investigations into booster activity in violation of NCAA rules.

For example, during his time with the university’s highly accomplished

football program, former Clemson wide receiver Tee Higgins caught

backlash for a social media post featuring him standing in front of a brand-

new McLaren, which he somehow managed to afford while a full-time

120

See Isidore, supra note 33.

121

Role of Boosters, NCAA, http://www.ncaa.org/enforcement/role-boosters (last visited Nov. 25,

2019).

122

Sam Brodey, Meet the Big-Money Boosters Behind College Football’s Top 25 Teams, MOTHER

JONES (Sept. 5, 2014), https://www.motherjones.com/environment/2014/09/college-football-boosters-

top-25.

123

Role of Boosters, supra note 121.

124

Id.

125

See Mitch Albom, Why Paying College Athletes Is More Complex than California Law, DET. FREE

PRESS (Oct. 6, 2019, 12:00 AM), https://www.freep.com/story/sports/columnists/mitch-albom/

2019/10/06/mitch-albom-california-fair-pay/3880569002.

126

See Michigan Forfeits Victories from Five Seasons, supra note 82.

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2021] Pay the Piper, and Also the Punter 547

student athlete.

127

Despite the post clearly indicating that Higgins did

purchase the car, the star wide receiver evaded persecution by claiming he

had never actually purchased the car.

128

Players for the University of

Alabama, a perennial powerhouse in college football, are even less secretive

about their inexplicably luxurious vehicles, regularly posting pictures on

social media of themselves standing in front of their premium cars.

129

Unsurprisingly, these two football programs are regularly ranked in the top

five for their annual football player recruiting classes.

130

While one could

feasibly subscribe to the notion that players being paid under the table is the

exception to the rule, and not a systemic issue, these kinds of bribes and

violations are much more commonplace than the NCAA would ever openly

acknowledge.

131

5. Allowing Boosters to Compensate the Athletes Directly Would Likely

Lead to Greater Fairness and Transparency in College-Athlete

Compensation

Instead of allowing this underground system of player compensation to

go on, the NCAA should change its rules to allow boosters to compensate

college athletes. This way there would be greater transparency and overall

fairness. Compensation limits could be set based on factors such as which

athletic conference the university belongs to, what sport the player plays, and

what position the player plays. The NCAA could set thorough guidelines for

how the athletes can be compensated. To avoid the issue of boosters

compensating beyond the set limits, the NCAA could implement and enforce

strict disclosure and reporting guidelines for all payments made to players.

They could even audit the athletes to ensure that no individual player is

taking in too much money directly from the school. This should theoretically

disincentivize under-the-table compensation and increase fairness

throughout college athletics. Having the reporting guidelines and audits

would disincentivize corruption because athletes would be less likely to take

a bribe to sign with a certain school if they will be compensated either way.

Moreover, boosters will be less likely to offer bribes if they know that an

audit is possible. Athletes would be more likely to decide where to enroll

based on the university itself, the training facilities, the coaches, and the

overall fit for them, rather than going to the school that can funnel the most

money to them under the table. This would likely even lead to a more

competitive landscape in sports such as college football, instead of the

current landscape where a handful of overly-talented teams with all of the

best recruits win almost every year.

132

Allowing boosters to compensate

127

Alex Kirshner, Here’s What Happens When a Star College Football Player Takes a Picture in

Front of a Nice Car, SBNATION (June 9, 2018, 4:43 PM), https://www.sbnation.com/college-

football/2018/6/9/17444878/tee-higgins-clemson-mclaren-picture.

128

Id.

129

Dan Regester, Alabama Football Is the Best Car Dealership in the Country, TOTALFRATMOVE,

https://archive.totalfratmove.com/alabama-football-is-the-best-car-dealership-in-the-country (last visited

Feb. 19, 2021).

130

See, e.g., 2021 Football Team Rankings, supra note 88.

131

Albom, supra note 125.

132

See, e.g., College Football Championship History, NCAA (Jan. 12, 2021),

https://www.ncaa.com/news/football/article/college-football-national-championship-history; Chip

Patterson, College Football Recruiting: Schools with Best Class Rankings on Average Over the Past Five

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548 Southern California Interdisciplinary Law Journal [Vol. 30:529

players in this way, in addition to removing the restrictions against players

earning money from outside sources, would alleviate many of the

aforementioned negatives in college sports and would likely do so without

jeopardizing 501(c)(3) nonprofit status, among other concerns.

D. CRITICS OF THE MOVEMENT TO COMPENSATE COLLEGE ATHLETES DO

NOT PRESENT ARGUMENTS THAT OUTWEIGH THE AFOREMENTIONED

POSITIVES OF PAYING COLLEGE ATHLETES

1. The “Sanctity of Sports” Argument is Unconvincing and Internally

Inconsistent

Critics of the movement to compensate college athletes base their

objections on a variety of loosely constructed arguments. The first and most

popular objection involves protecting the “sanctity of college sports.”

133

This

NCAA catchphrase is the apparent “special sauce” of college sports; it is

what differentiates college football from the NFL, college basketball from

the NBA, and so forth.

134

Tim Tebow, a legendary college football player

from the University of Florida who now works for ESPN, has expressed fear

that allowing college players to be compensated would turn college football

into the NFL.

135

However, in actuality, college football is already a money-

making giant, just like the NFL, so it is unclear exactly what Tebow is taking

a stance against. In fact, the top twenty college football programs by revenue

have profit figures that are almost identical to many of the middle-tier NFL

franchises.

136

On the other hand, Tebow could have been alluding to the idea

of playing “for the love of the game,” instead of for money. However, this

argument still falls short because many of the highest-level college athletes

are playing to increase their NFL draft prospects, which in turn will lead to

more money. The only difference is that they have to wait to start earning

money, which actually encourages them to leave college football earlier,

making it no more than a stop on their journey. That does not seem like

playing “for the love of the game.” Allowing these players to be compensated

could keep them in college longer, as they would be less likely to run into

financial issues that would force an early departure from their universities.

Moreover, it will not change their motivation for playing, since their

motivation was already money to begin with. In fact, it would likely increase

their “love of the game,” because they could spend less time worrying about

Years, CBS SPORTS (Feb. 12, 2019, 12:22 PM), https://www.cbssports.com/college-football/

news/college-football-recruiting-schools-with-best-class-rankings-on-average-over-the-past-five-years.

133

John D. Hollis, California Law Takes Paying College Athletes Out of the NCAA’s Hands: Today’s

Talker, USA TODAY (Oct. 2, 2019, 2:35 PM), https://www.usatoday.com/story/opinion/2019/10/02/ncaa-

california-student-athletes-pay-exploitation-talker/3841071002.

134

Bill Burton, Author Joe Nocera on the NCAA and the Case for Paying Student Athletes, WFPL

(Apr. 13, 2016), https://wfpl.org/author-joe-nocera-on-amateurism-the-ncaa-and-the-case-for-paying-

student-athletes.

135

Jason Gay, Pay College Athletes? Here’s a Common Sense Way to Do it, WALL ST. J. (Sept. 19,

2019, 10:36 AM), https://www.wsj.com/articles/pay-college-athletes-heres-a-common-sense-way-to-do-

it-11568902914.

136

Tyler Hakes, NCAA Football Teams Made More Money than NFL Teams in 2015, UCRIBS,

https://www.ucribs.com/blog-post/ncaa-football-teams-made-more-money-than-many-nfl-teams-in-

2015-infographic (last visited Nov. 25, 2019).

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2021] Pay the Piper, and Also the Punter 549

how their play will affect their draft position, and more time focusing on

playing the game they love and representing their university in the best way

possible. At the same time, the less-highly-touted players will continue

playing for the love of the game because while they may start to see some

money, they are not the type of player that boosters will be forking over

money to or the type of players who would see massive amounts of income

from endorsement deals. Players without a realistic shot of going into

professional leagues are already playing for the love of the game, and some

money on the side to cover their expenses would not change that. For these

reasons, Tebow’s fears are misplaced, and should not be considered as a valid

reason not to compensate college athletes.

2. The Scholarships and Perks That College Athletes Are Currently

Receiving from Their Universities Should Not be Viewed as Compensation

and Cannot be Held Against Them

Critics of the movement to compensate college athletes also often rely

on the argument that college athletes are already compensated through

scholarships and the perks that come along with being a collegiate athlete.

This argument is flawed for several reasons. First, being a student is a

prerequisite for being a college athlete, and for most professional leagues,

being a college athlete is a prerequisite for having a professional career. To

be eligible to be drafted in the NFL, players must have been out of high

school for three years.

137

There is no direct requirement that players spend

those three years playing college football, but there is an informal one.

College football is the only league that exists where draft prospects can

showcase their skills to give them a chance of making it to the NFL. As

mentioned earlier, the XFL exists as a new alternative wherein athletes could

receive compensation for their play, but this league is new, and it remains to

be seen if it will be successful enough to get the players the exposure they

need. The NBA has a similar rule, but players need only be out of high school

for one year.

138

As discussed earlier, some players have been paving new

roads by spending this one year in overseas professional basketball leagues

rather than going to play in college. However, this is likewise a new strategy,

and we do not yet know if it will prove to be a reliable pathway to the NBA.

Thus, players who seek to make it into professional football and basketball

leagues have no realistic choice but to become a college athlete. Thus, to call

their education a perk, or even further, to call it compensation, is clearly a

stretch given that they have no choice but to receive the education. Moreover,

the highest tier athletes do not truly receive any benefit from their

scholarships because they often leave school before completing their

degree.

139

These same athletes also have no use for this education because

they are going to be paid millions of dollars in the near future and retire

thereafter, without ever using their degree. Thus, it is unfair to count these

benefits against the athletes when it comes down to discussing the fairness

of denying them the ability to earn compensation.

137

The Rules of the Draft, NFL FOOTBALL OPERATIONS, https://operations.nfl.com/journey-to-the-

nfl/the-nfl-draft/the-rules-of-the-draft (last visited Feb. 19, 2021).

138

Id.

139

See What Percentage of NFL Players Are College Graduates?, supra note 25.

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3. Many if Not All of the Perks That College Athletes Receive Serve

More in the Interest of the University Than in the Interest of the Athletes

Themselves

The additional perks that student athletes receive also should not be

viewed as compensation because nearly all of them further the university’s

agenda rather than simply making the athlete better off. The NCAA allows

universities to offer unlimited meals and complimentary nutritionists to

college athletes.

140

Several universities spend seven figures each year to fund

these kinds of perks for their college athletes.

141

Nonetheless, the university’s

focus in providing these benefits is, at least in part, to get the best

performance on the field from their athletes. The NCAA also allows schools

to cover the cost of a college athlete’s travel to games.

142

However, road

games are a necessary part of the schedule for most college sports, so this is

a cost that universities should naturally incur, not one that should be viewed

as a generous gift to the athletes. Moreover, the university receives many

benefits from scheduling road games, including income from the game,

national exposure, and a chance to impress rankings committees with quality

wins, which further shows that covering the cost is in the university’s interest

and not in the athlete’s.

143

Similarly, the NCAA allows universities to offer

cost-of-living stipends.

144

However, this too is nothing more than offering

something which the school should pay for regardless, since many players

could not afford to live on their own due to limited resources and lack of

income. Without proper living arrangements, the athletes could not perform

at a high level and make incredible sums of money for their universities. For

these reasons, the argument that players are already compensated through

perks is weak.

V. CONCLUSION

The movement towards college athlete compensation has picked up too

much momentum to die out without causing significant changes. The NCAA

will likely begin allowing students to profit from outside sources off of their

likeness in revenue streams such as YouTube videos, commercials, or

memorabilia sales. This is a step in the right direction, but for the

aforementioned reasons, it is only a step, and still more must be done for

student athletes. Eventually, demands for a free-market system will likely

overwhelm the NCAA, and universities will begin paying college athletes

directly. This will be a positive change for the NCAA, its member

universities, its athletes, and its fans. It is only a matter of time.

140

How We Support College Athletes, NCAA, http://www.ncaa.org/about/resources/media-

center/ncaa-101/how-we-support-college-athletes (last visited Nov. 25, 2019).

141

Brett Regan, These 20 Colleges Spend $40 Million Just to Feed Student-Athletes, FANBUZZ (July

10, 2019, 11:12 AM), https://fanbuzz.com/college-football/ncaa-student-athlete-dining.

142

How We Support College Athletes, supra note 140.

143

See Tim Casey, Travel Now, Win Later: For Smaller Programs, a Tough Road Schedule Has

Benefits, N.Y. TIMES (Dec. 7, 2016), https://www.nytimes.com/2016/12/07/sports/ncaabasketball/road-

games-college-basketball-small-schools.html.

144

How We Support College Athletes, supra note 140.