Wolken: The arguments of the NCAA in favor amassism are becoming more absurd

The message to NCAA could not be clearer and yet, so many college athletes don’t seem to want to hear it. There is no plan for dealing with this threat.

After a string of legal losses that left the NCAA vulnerable and more unpopular than ever, Congress will have to help. There are only so many options to create a model that is both compliant with the law and preserves the overall structure of the current system without destroying the entire organization.

Is there any creativity among the conference commissioners and athletics directors who have become so rich from college sports that they can come up with a system which justly benefits the Alabama quarterback and the Division II golfer, without pretending to be the same? It’s not something I see.

Yet, despite another poor day in court last Wednesday, which left a panel judge almost offended by the NCAA’s notion of amateurism – there is still a great need for new ideas.

Johnson vs. NCAA, a case in which Division 1 athletes claim they are employees and have the right to wages under Fair Labor Standards Act, has not been decided. The U.S. Court of Appeals, Third Circuit heard last week only whether or not the case would move forward. This is what the NCAA would prefer.

However, experts who attended the hearing were left with the impression that NCAA attorneys struggled to answer the judges’ questions. One even said, “I don’t see how college athletes can’t be employees,” given the amount of control coaches have over their schedules as well as the economic realities of a multibillion dollar sports enterprise.

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This is an all too familiar pattern. Judges find the arguments of the NCAA in favor of amateurism absurd when they are upheld against the law. They are absurd in any other context that is not college sports tradition.

Judges seemed to be open to recognizing that the NCAA is a unique American institution and that it was not easily categorized when the legal attack on amateurism started more than 12 years ago, with Ed O’Bannon filing an antitrust lawsuit.

This sentiment is no longer valid after so many of these cases have passed through the court system. Now, the mood is shifting towards Justice Brett Kavanaugh. His concurring opinion in NCAA.v. Alston, which went 9-0 against NCAA, clearly shows how hard college sports will face going forward.

Kavanaugh stated that businesses cannot agree to not pay workers fair market rates in America. This is because their product can be defined as not paying workers fair market rates. It is not clear why college sports should be treated differently under the antitrust laws.

It is time for the NCAA and conference commissioners, athletics director, and all others with stakes in the enterprise, to take a serious look at the room. Let’s not make excuses, we need to solve this problem.

You hear a lot of schools saying that they can’t pay basketball and football players fair value for the income they generate. This would also apply to track & field and soccer. You can’t make athletes employees in Division 1, because it would apply to Division 2. This would essentially put out those schools’ athletic departments, since they don’t have much revenue at this level. This is a reference to Title IX, which provides millions of opportunities for women in college sport, as an excuse for limiting economic opportunities.

This argument has, undoubtedly, cost the NCAA millions upon million in legal fees and resulted in loss after loss in courtroom. It’s a terrible, outdated way of looking at college sports.

It may have seemed reasonable, three or four decades ago that the differences between major-time basketball and football schools were not so great that an entirely new system was needed.

When you take a look at all aspects of how these elite programs are managed, from the salaries to the bottom, it becomes apparent that they have much more in common than the FCS school or campus water polo team who might be paid an appearance fee for playing a glorified exhibition match.

These aren’t simple problems, but they can be solved. There must be a better way than to wait for more losses in court, or to hope that Congress will grant an antitrust exemption.

This may mean that universities must agree to drop non-revenue athletics from their athletic departments and make them more like club sports, where scholarships would be awarded based on academic merit and financial need.

Perhaps there is a model that allows college football to become a professional league. Teams are affiliated with universities through licensing agreements. This allows them to collectively bargain and pay players a portion of the revenue.

Perhaps that’s not the right answer, but college sports must put its brainpower to work and think more boldly about how to change from the current model to something more adaptable and responsive to economic and legal realities.

The unmistakable message in each of these court proceedings is that the NCAA must do something completely different. It can’t, if it doesn’t even try.