One idea how to fix college sports: allow athletes union membership

Big-time football schools like Michigan regularly pack more than 100,000 fans into their stadiums.
Jeff Haynes/SI

As the debate over whether to pay college athletes grows louder and more intense, this is the time to consider a different approach: allowing college athletes membership into sports unions. Throughout our history, unions have fought for workers' rights, protecting them from unfair working conditions and exploitation. Nowhere is that exploitation more rampant than in collegiate sports, particularly in big-time football and men's basketball.

This isn't a new phenomenon. But what has changed recently is the convergence of forces now acting on the athletes' behalf: the introduction of the National Collegiate Athletics Accountability Act to improve the "health, safety and education" of college athletes by Representatives Joyce Beatty (D-Ohio) and Charles Dent (R-Pennsylvania); the recent Federal court victory of Keller vs. EA Sports and the Ed O'Bannon antitrust lawsuit. While these developments are enough to initiate change, union involvement can, and should, institutionalize, regulate and enforce that change.

As a former Executive Director of the NBA Players' Association, I testified before the Senate Judiciary Committee in 1983 to oppose the Collegiate Student-Athlete Protection Act. The proposed legislation would have prevented college athletes from leaving school before the completion of their eligibility to pursue a professional career. I recall a number of college coaches from prominent football programs backing the legislation by trumpeting the importance of earning a degree, when, in fact, the commercial value of keeping star athletes in school was the motivation. Fortunately, the bill was defeated. This led me to write an article for The New York Times in 1990 titled, "It's Time to Give College Athletes a Share." The piece proposed the idea of sharing revenues with student-athletes. Even 23 years ago, college sports were a multimillion dollar business and top coaches were earning high six-figure salaries. The representation of college athletes and the modification of the NCAA's archaic rules regarding its student-athletes were overdue then.

Most Americans really don't understand what's at stake here, which is a large part of the reason why the NCAA has been able to get away with this treatment of its athletes for so long. People generally believe that if student-athletes receive scholarships, then those scholarships are enough compensation. They are also misguided by the celebrity status the athletes receive and have little understanding of the working relationship between the athlete, the university and the NCAA. Not to mention that when people consider athletes as a revenue-sharing partner to universities, the first thing that comes to mind is "paychecks for athletes", which no one supports.

College athletes have extremely limited rights and protections. The educations that they receive are secondary in importance to the revenue they generate. March Madness, conference championships and bowl games trump education. Though most athletes sign a letter-of-intent out of high school that bind them for the next four years to universities, they are not given four-year scholarships; they receive one-year scholarships, which can be revoked, at will, by coaches or the school. And whereas coaches can leave at will, or be dismissed, the athletes are still bound to the school, and are not permitted to leave a program without significant penalty. Student-athletes also have insufficient life, disability and health insurance coverage, which force those who are skilled enough to do so to turn professional early. Additionally, the NCAA retains the rights to athlete's likenesses, and continues to profit from them, seemingly, forever. This is the basis of the Ed O'Bannon lawsuit.

Meanwhile, college presidents, coaches and athletic directors all have representation, and their pay is commensurate to that of their professional sports counterparts. The NCAA is in the third year of a 14-year, $10.8 billion contract with CBS/Turner to broadcast the men's basketball tournament. The four-team football playoff, which will begin in 2015, will also generate billions. Several conferences have their own television networks and all of them have multi-million dollar TV deals. Yet there is a doomsday cry from college administrators that sharing revenues with athletes will be the end of college sports. I am reminded of team owners who always claim the doom of their collective businesses at the bargaining table only to see their franchise values continue to increase.

As the parties move forward in the O'Bannon anti-trust case, both sides must realize that a settlement is the endgame. At the most recent hearing in June, U.S. District Court judge Claudia Wilken referred the parties to a former judge for settlement discussions. Now is the time for the NCAA and the O'Bannon plaintiffs to recognize a coalition of the professional sports unions as exclusive representatives of college athletes. The unions have been dealing with revenue-sharing agreements since 1983, and anti-trust sports settlements since the 1970s. Most importantly, they have something of great value to offer the parties in settlement talks -- the ability to resolve one of the NCAA's biggest enforcement problems, sports agents. If the sports unions were to represent the college athletes, the combination of the NCAA's enforcement at the collegiate level and the unions' authority to both certify and subpoena agents would allow for a more effective and substantive regulatory system governing player agents in all sports. It would help clean up agent abuse in amateur athletics.

Here's another settlement idea in the O'Bannon case: grant a free associate membership to the scholarship athlete in one of the sports unions and allow the union to negotiate on their behalf. Eligibility in the settlement would be based on years of varsity participation by the athlete. The settlement would include a cash payment to former players, spread over three to five years. It could also include deferred payments to current and future athletes from a joint licensing program negotiated by the unions between the NCAA, its member institutions and the scholarship athletes. Since few college athletes turn professional, this fund could provide payments to the athletes from ages 30-50. Such an approach would provide a more balanced financial solution for all parties. The point is to come up with a solution to help not only the parties that were harmed in the past, but also provide a framework for the future.

How can we do this? My research reveals that there are innovative financial and investment products created that can reach the goal of compensating scholarship athletes on such a deferred basis. While it begins as part of the settlement of the Ed O'Bannon lawsuit, it answers one of the biggest questions in sports today: that is, how to give college scholarship athletes a fair share of the economic pie.

The final piece to the settlement would allow for the unions to negotiate a set of reasonable rules and policies governing the relationship between the scholarship athlete, the NCAA, and his/her college or university. This would include items such as a comprehensive concussion policy, a grievance and dispute resolution procedure, a recreation and performance enhancement drug policy and program, transfer and eligibility rules, agent regulations and monitoring.

The convergence of these forces presents a real character, even moral, test for the NCAA and its members: a pass/fail final exam for the governing body and its university presidents, athletic directors and conference commissioners. They will either pass, with a compromise and a collaborative effort to find a solution to resolve a business problem, or fail, and send the college sports industry deeper into the abyss.

Charles Grantham represented the National Basketball Players Association (NBPA) from 1976-95, the last seven years as executive director. He transformed the NBPA into a multi-faceted organization and was an architect of the revenue-sharing business model while protecting the NBA's greatest asset -- its players. Currently, he is a sports business consultant as well as an advisor to the University of Pennsylvania's Wharton Sports Business Initiative and an adjunct professor at Seton Hall University's Stillman School of Business and at New York University, where he teaches and lectures at the graduate level on negotiation, collective bargaining and dispute resolution in professional sports.

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