Pay for Play

Some college athletes are now making big money from endorsements. Next up: whether they should be paid as university employees.

BY DWAYNE BALLEN backtalk@indyweek.com

During spring practice, UNC-Chapel Hill star quarterback Drake Maye rises at 5:45 a.m., eats breakfast, attends a short football meeting, and participates in drills until 10:30 a.m.

He races to get to his first class by 11 and finishes with another at 1:30. He attends a series of football meetings in the afternoon, including watching video of games and practices, and typically finishes at 7:00 p.m.

“That’s a long day,” said his father, Mark Maye, a former UNC quarterback who described his son’s schedule to The Assembly. Maye has three other sons who played or still play college sports, including former UNC basketball standout Luke Maye. “I’ve really come around to the idea that they are more like employees.”

College athletes are considered amateurs—but they are the essential components of what has become a multibillion-dollar entertainment enterprise.

As coaches, administrators, and TV executives made more and more money from college football and men’s basketball, various college athletes laid the legal groundwork for why they should be paid for their labor. But none of those lawsuits fundamentally changed the business.

That is, until 2021, when the U.S. Supreme Court ruled unanimously that college athletes could be paid by outside sources for use of their name, image, and likeness—essentially, for endorsements. Justice Brett Kavanaugh was blunt in his concurring opinion.

“The NCAA’s business model would be flatly illegal in almost any other industry in America,” he wrote. The NCAA, the governing body of college sports, had built “a massive money-raising enterprise on the backs of student athletes who are not fairly compensated.”

Since then, some college stars have signed lucrative deals. The mother of Armando Bacot, a UNC-Chapel Hill basketball star (and business major), told Sports Illustrated last year that her son was set to earn more than $500,000 in 2022.

Drake Maye might have turned down a lot more than that.

At a press conference in December, UNC football coach Mack Brown said that Maye “was offered a lot of money to go” to another program, which is against NCAA rules; University of Pittsburgh coach Pat Narduzzi then said that two schools offered Maye $5 million, presumably in endorsement deals, to transfer. Narduzzi was complaining on a talk radio show about new rules that allow players to transfer every year.

“We’re the mini-NFL,” Brown recently told Sports Illustrated. “That’s where we are headed. We will never see amateurism again. It’s gone. I hate it.”

With all this money flowing to star players, college sports fans might have assumed that compensation for college athletes was a settled issue.

Far from it. The biggest, thorniest, most polarizing matter lies ahead.

The marketing and advertising deals available to college athletes don’t include compensation from the universities themselves. The next evolutionary step is becoming more and more likely: treating college athletes as employees— and compensating them accordingly.

In December, the Los Angeles region of the National Labor Relations Board (NLRB) found merit in an unfair labor practice charge filed on behalf of University of Southern California football and basketball players seeking recognition as university employees.

The NLRB said the university, the Pac-12 Conference, and the NCAA had “misclassified scholarship basketball and football players as mere ‘student athletes’ rather than employees entitled to protections under the law.” The issue will be heard by a federal administrative law judge and ultimately could be appealed in federal court.

The NLRB’s Chicago office previously found that Northwestern University football players spent 1,750 hours a year on football, or an average of 36 hours a week. They spent 50 to 60 hours a week during the August preseason; 40 to 50 hours during the season; and 12 to 25 hours in the spring.

In that case, the Chicago office said the Northwestern players should be considered employees, but the full NLRB declined in 2015 to assert jurisdiction.

Some analysts believe the full NLRB will decide to hear the Southern Cal case. The NLRB only has jurisdiction over private employers—including private universities such as Southern Cal—but if the players win, the NCAA would be forced to address the issue for public universities also.

Jay Bilas, the ESPN analyst, lawyer, and former Duke University basketball player, is unequivocal that college athletes should be paid as employees.

“Right now, [college] athletes fit every criteria you would have in an employee,” he said. “They’re under the dominion and control of the university. They’re told when to play and when not to. To me, it’s very clear.”