View of players as chattel may not survive challenge
Nick Roumel
Nacht, Roumel, Salvatore, Blanchard, and Walker PC
Last month my colleague and co-columnist Ned Macey brought you up to speed on the petition of the Northwestern University football players, filed with the National Labor Relations Board, seeking the declaration that they were employees with the right to collectively bargain with the University. Since Ned's article, the NLRB decided in the players' favor. Pundits are debating the significance, while the NCAA scrambles the spin machine.
Technical jargon aside, the decision means one thing: college athletes are not chattel. But this simple declaration challenges the status quo. The NCAA wants to keep running its multi-billion-dollar machine, with packed stadiums and fat television contracts, and maintain (with a straight face) that the entertainers themselves can't share a dime of this revenue. More: that they're not even entitled to their own likeness, such as when the University of Michigan profited off of Fab Five jerseys and trading cards.
So the NCAA, along with their member universities, the media, and bowl organizers, are sitting on their bags of money a la Scrooge McDuck. But their façade is starting to crumble. Lawsuits are popping up like spring mushrooms, and this may be the next phase of the sports civil rights movement.
This began 45 years ago, in professional sports. First, St. Louis Cardinal center fielder Curt Flood sought to reject a trade to the Phillies, writing to then-baseball-commissioner Bowie Kuhn in December 1969:
After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States. …
When his request was rebuffed, Flood sued. Despite the support of his Union (the Major League Players' Association), Flood became a pariah among even his fellow players. He sat out the 1970 season, and barely played thereafter, once finding a funeral wreath on his locker. Even though Flood lost at the Supreme Court, he opened the door for free agency, giving his fellow players a path to greater wealth and freedom.
Another maverick was Detroit's own Spencer Haywood, one of the most amazing basketball players of all time. In 1969, the NBA and the colleges had a wink and a nod arrangement where players could not enter the NBA draft until four years had passed from their high school graduation. Haywood avoided this rule by jumping to the upstart American Basketball Association (which later merged with the NBA), but a dispute arose between the ABA and the NBA team that held Haywood's rights. He then moved to the NBA and sued, charging a violation of anti-trust laws. This time the Supreme Court sided with the player, upholding an injunction and remanding to the lower court for trial. Justice William O. Douglas' terse opinion cited the irreparable harm to Haywood and the Seattle Supersonics in potentially missing the playoffs, if plaintiff were barred from playing. Haywood had some All-Star seasons, but also suffered ostracism and developed a drug problem that derailed his career.
After the Haywood decision, high schoolers jumped directly to the NBA, most prominently Moses Malone, Kobe Bryant, and LeBron James. This alarmed the league, which paternalistically clings to a belief that this is bad for young men (or more tacitly, bad for the NCAA by depriving colleges a chance to earn revenue off of the best players). So the current compromise, with the blessing of the NBA's players' union, is a minimum of age 19 with at least one year out of high school - the “one-and-done” rule.
Football's rule is that players must wait three years after high school graduation before entering the NFL draft. Perhaps due to its greater physical demands, there has not been the same push from players to leave earlier. There was one notable exception: Ohio State bad boy Maurice Clarett.
Before his many legal woes, Clarett was the darling of Buckeye nation for leading his team to the national championship as a freshman in 2002-03. Criminal charges led to his suspension from the team the following year, and he filed suit, similar to Haywood's, to enter the NFL draft early. A lower court agreed, finding that the NFL's rule violated anti-trust laws. But the 2nd Circuit reversed, in an opinion authored by now-Justice Sonia Sotomayor. She reasoned that because the three-year waiting period was the product of the collective bargaining agreement between the NFL and its players' union, it was exempt from anti-trust laws.
Some observers believe these collectively-bargained limits are still legally vulnerable, perhaps on age discrimination grounds. Clarett argued, unsuccessfully, that he should not be bound by a contract to which he was not a party. In the meantime, football and basketball players remain bound to their colleges until they can enter their respective pro drafts. Until such time as a lucky few can sign lucrative professional contracts, their colleges and others make a great deal of money from their labor.
College athletes are growing increasingly resentful that while everyone is raking in the dough, they don't get a piece of the action. Some of Michigan's Fab Five made public statements in this regard, and a development officer for a major public university once told me that this is a reason why many former players don't donate to their alma maters after hitting it big in the pros.
Enter Jeffrey Kessler. This firebrand sports labor attorney has challenged the very foundations of the NCAA - that players should get nothing more than their athletic scholarship. Filing a proposed class action anti-trust lawsuit in March, on behalf of college basketball and football players, Kessler told ESPN he seeks “to strike down permanently the restrictions that prevent athletes in Division I basketball and the top tier of college football from being fairly compensated for the billions of dollars in revenues that they help generate.” This is even bolder than another pending suit that seeks to tie compensation to an attendance model; Kessler resists any such caps. (Compare the Northwestern players' modest goals to seek a greater voice in player safety and other working conditions.)
Another suit that has wound its ways through the courts is a lawsuit against the NCAA on behalf of lead plaintiff and former UCLA basketball star Ed O'Bannon. According to Charles Pierce of grantland.com: “At issue is the NCAA's right to profit forever from the names, images, and likenesses of the people who play the games without compensating the players at all. (The suit was kicked off by O'Bannon's anger that his likeness had been used in an NCAA-licensed video game.) … If the court were to eventually decide in favor of the plaintiffs, it would force the NCAA to fork over billions of dollars in television revenues and licensing fees. It could also force the development of a more equitable system in which the people who do the work get a decent share of the profits. All the profits.” The O'Bannon suit recently survived a motion to dismiss and is heading for trial.
The boulder is rolling down the hill, gaining momentum, and it's poised to run right through Scrooge McDuck's vault. Until then, the NCAA is still clinging to that antiquated notion that players don't deserve a cut of the revenue. It's not slavery - Curt Flood was roundly criticized for making that comparison, and rightly so. But at heart, it's simply not economically fair, and it's time for this wall to come tumbling down.
