Athletes can be paid an unlimited amount by their schools according to a proposal that will be introduced this week via a letter submitted by NCAA President Charlie Baker. In that letter, Baker proposes to create a new subdivision within Division I that grants schools the discretion to set up NCAA approved structures to funnel monies to these student athletes “on any level …they deem appropriate.”

Baker proposes that schools will be free to enter into NIL deals directly with student athletes while previously they were forbidden from active participation. Baker’s letter also mandates certain financial commitments to ensure than women’s sports and female athletes are protected.

Unfortunately, Baker’s suggestion is too little, too late. The genie is out of the bottle with all the recent court and legal proceedings ruling against the NCAA. The landmark O’Bannon case affirmed student athlete rights to exploit their name image and likeness. Moreover, legal scholars are predicting that the NCAA will lose the pending House v NCAA case which claims that all NCAA restrictions on student-athletes receiving money should be null and void. The case has been certified as a class action suit.

There is also a hearing in front of the NLRB regional office in Los Angeles to determine whether student-athletes at University of Southern California (USC) who participate in revenue generating sports, football and basketball, are employees within the National Labor Relations Act and are entitled to compensation for a minimal wage, social security, overtime, worker’s compensation and other workplace protections. If declared employees, student-athletes would also have the right to unionize and collectively bargain. The employee test centers around how much control the employer has over those providing services and whether those services are key to generating revenue.

If NCAA Loses Baker’s Suggestions Will All Be Moot

If the NCAA lose this case it would have far reaching implications. Beyond NIL, the NCAA would be prevented from restricting athletes in any form from being paid to “play” their respective sport. There is no question that Baker’s proposal will be viewed as restrictive since there are many conditions that must be met for athletes to be funneled money by the schools. Moreover, Baker’s proposal would be implemented without regard to any collective bargaining or any meaningful student-athlete participation for that matter. It still limits dramatically the scope of how an athlete can be compensated so if any of these legal challenges are successful the system Baker proposes will be struck down.

If student-athletes can’t be prevented from getting paid, and athletes in revenue generating sports are employees, the consequences would be enormous. This would threaten the very existence of the NCAA unless it radically transforms the services it provides to its member schools.

The NCAA Should Represent The Rights Of Member Schools In Negotiations With Its Student Athletes

In order to survive and thrive, the NCAA should become a representative of its member schools in negotiating with student athletes, through some form of collective bargaining, depending on whether the athletes form a union or simply form an association for negotiation purposes.

In this capacity, the NCAA can still provide a valuable service to member schools to protect and grow the billions of dollars of revenue generated by the NCAA revenue generating sports. At the negotiating table will be a variety of stakeholders:

• student athletes: in the various sports depending upon how much revenue their sport generates. This group will include women’s revenue generating sports such as basketball and potentially volleyball.
• women’s non revenue generating sports: because Title IX mandates that women who participate in non revenue generating sports at the college level must be provided equitable access to compete.
• the NCAA: charged with the responsibility of protecting the economic interest of its members which includes an educational component.

All athletes will still be completely free to exploit their NIL rights without limitation unless limited in some way through collective bargaining (i.e., the footwear and apparel worn in the field of play). College sports is about to be transformed before our very eyes. Hang on and enjoy the ride.