Settlement negotiations in the House v. NCAA case brought by current and former student-athletes over NCAA rules that prevent compensation for the use of their name, image, and likeness (NIL) during television broadcasts, are in the final stages.
This potential settlement, and the confusion surrounding its impact, is evidence of the NCAA’s desperation to avoid calling players what it is increasingly clear that they are — employees.
The agreement also settles similar cases Hubbard v. NCAA and Carter v. NCAA.
The NCAA and its conferences agree to pay damages to current and former players and develop a new revenue-sharing model to pay athletes a percentage of the revenue generated by their play.
Yet because settlement terms use language about revenue-sharing that specifically avoids words like labor, employment, and employee it can be assumed the NCAA bigwigs will continue lobbying Congress to pass legislation preventing student-athletes from being designated employees.
Make no mistake though. This settlement is not the NCAA finally developing a conscience and seeing the light.
The Rent was due from the NCAA
They are being dragged kicking and screaming toward a future they never wanted. Three decades of annual record-setting profits while regularly punishing individual student-athletes and entire institutions for getting paid or paying players ensures the money stays in the “right” hands a.k.a. anyone but the athletes themselves.
And this has impacted Black athletes even more so.
In 1985, the NCAA went nuclear on SMU football and rendered the “death penalty” after an elaborate scheme to regularly pay players was discovered. The NCAA canceled all home games, eliminated all scholarships, and limited coaching hires through 1990.
In 1988, Oklahoma football was handed a three-year probation for recruiting violations that included payments, flights, and game tickets. The probation banned the team from bowl participation for two years, one year with no live television coverage, and recruiting restrictions. The university estimated they lost approximately $1 million in each year of probation.
Black athletes make up 60% of college football and men’s basketball teams and continue to be disproportionately impacted by NCAA rules that restrict compensation.
Though both sports have become expensive at the lower level in the last 10 years, class differences among players have historically been along racial lines. Black players are more likely to have economic responsibilities beyond themselves and or depend completely on their athletic scholarships for survival.
At the same time, Black players make up the majority of the labor of sports participation at the collegiate level — and subsequently much of the star power.
The biggest Black stars in college sports were, arguably, the University of Michigan’s Fab Five.
Punishing Black Stars
What they did for the school and college basketball was irrefutable, yet they received nothing from the revenue they generated. The group became one of the first set of athletes to publicly question where the money being made off them was going. A decade later, after the NCAA opened an inquiry into the program regarding payments of over $600,000 made to Wolverines star Chris Webber and three other athletes, University of Michigan president Mary Sue Coleman imposed penalties on the program in an effort to stave off punishment by the NCAA.
The school vacated the program’s 1992 and 1993 Final Four appearances, returned the $450,000 it received from the NCAA for postseason appearances, forfeited every game the Fab Five played in, removed the banners associated with the team from the arena and banned the athletes from association with the institution through 2013.
Meanwhile, the increase in sports revenue at the university increased by $8 million after the Fab Five’s first year at Michigan.
But they weren’t the only Black superstars penalized during this time.
History is littered with similar examples of the NCAA and their respective institutions punishing players for seeking compensation while schools and the college sports “nonprofit” governing body reaped in millions, the latter now bringing in more than $1 billion per year.
In 2010, USC star and 2005 Heisman Trophy winner Reggie Bush was found to have taken more than $250,000 in cash and gifts while playing in college. Afterward, the team’s wins were vacated and Bush was humiliatingly stripped of his trophies while USC saw millions infused annually in the school’s athletic coffers while he played for the team.
1995 NCAA champion and UCLA forward Ed O’Bannon was the lead plaintive in O’Bannon v. NCAA, the antitrust lawsuit regarding the NCAA’s licensing of college athletes’ likenesses to video games. His lawsuit arguably kicked off the series of lawsuits over the years that led us to the current settlement negotiations.
The 2014 ruling in O’Bannon’s favor (and Oscar Robertson, who joined the lawsuit later) served as the foundation for the passing of California’s Pay-to-Play Act in 2019, which allowed college athletes to sign endorsement deals and sponsorships while maintaining athletic NCAA eligibility. As other states followed with similar bills, the NCAA had no choice but to amend their own policies to allow athletes to be compensated without penalty via NIL.
It was a policy they never intended to change.
So what’s next for the NCAA?
Paying players or allowing them to be paid or profit from the labor as athletes further blurs the line between student and employee. Some teams, like QB Kain Colter and the 2014 Northwestern football team, have tried unionization to force schools (and the NCAA) to recognize them as employees. Most recently, players on Dartmouth’s men’s basketball team voted 13-2 to unionize in March 2024. They are currently represented by Service Employees International Union (SEIU) Local 560, a union that advocates for many workers at Dartmouth, but the school refuses to recognize its new position.
While NCAA NIL policies and revenue-sharing suggest a new world order for college sports, those vacated wins, stunted programs, lost wages, tarnished careers and humiliating moments remain.
It’s still unclear how the $2.8 billion in damages will be split between former and current players, but it won’t come close to what they are likely owed in real dollars. And much like legislation legalizing marijuana, it cannot undo the disproportionate punishment Black people historically experienced nor undo the damage of 30 years of hoarding revenue while punishing any player compensated.
If the NCAA is willing to settle compensation lawsuits, then it owes public apologies to many people.
Without an antitrust provision in the settlement and because of the NCAA’s continued lobbying to ban student-athletes from being designated employees (and all the privileges that it entails) more lawsuits are likely to follow.
One thing is clear – as long as the money keeps flowing it will continue to make its way into player’s hands.
Players increasingly have control over their likeness via social media, many coming to college with a huge following before ever playing a game for their team. Star players like Angel Reese, Shedeur Sanders, and Caitlin Clark don’t need the NCAA as much as it needs them.
There is a new order developing in college sports. The NCAA better get on board or get left behind.
