Charles Grantham is Director and Faculty Associate Professor, Center for Sport Management, at Seton Hall University’s Stillman School of Business. He has also served as a Visiting Clinical Assistant Professor in New York University’s School of Professional Studies, Tisch Institute for Sports Management, Media and Business. He was the first Executive Vice President of the National Basketball Players Association (NBPA) from 1978 to 1988 and the NBPA’s first Executive Director from 1988 to 1995, where he was one of the architects of the NBA/NBPA revenue-sharing business model, the first in professional sports. Mr. Grantham earned a B.S. from Cheyney University of Pennsylvania, where he captained the school’s nationally-ranked basketball team for three years and was class president. Upon graduation, he received the Gentleman-Scholar-Athlete Award. He holds an M.B.A. from the University of Pennsylvania’s Wharton School of Business, where he also worked as Director of Admissions and Financial Aid at The Wharton School’s Graduate Division.
Where are the NCAA’s ethics and morality in its treatment of student-athletes? Its silence regarding, participation in, and refusal to protect collegiate athletes from sexual abuse and racial discrimination have been evident for decades. The NCAA’s power conferences’ latest course of action surrounding the pandemic—having collegiate players back on the fields, while requiring them to sign anti-litigation waivers—is simply more of the same. I applaud the efforts of Democratic Senators Cory Booker, Chris Murphy, Richard Blumenthal, and their other co-sponsors for their proposal of a federal bill to protect and, in some form, compensate student-athletes. However, the politically powerful lobby of the NCAA has continually limited congressional support of the athletes. Additionally, the devil is in the details as they say: in order to truly protect players, lawmakers need to understand how, and to what extent, players are being exploited, and this information is easily obscured by special interests. The current push, for example, surrounding name, image and likeness, from the NCAA, is to grant players individual access to “Name, Image and Likeness.” This is a negotiating tactic, and will do nothing to help those who most need it. Players need collective access to “Name, Image and Likeness.” Why? Because less than 2% of the players will go on to the NBA or NFL, yet all of their bodies will suffer the abuse of such a high level of competition, and all of them, collectively, make NCAA collegiate football and basketball work. For reference, in the NBA and NFL, the players’ collective names, images, and likenesses are worth a separate group license of the revenue they generate: they share it with the leagues.
Neither Republicans nor Democrats have great histories when it comes to protecting athletes. As recently as 2016, the Democratic-controlled NLRB board in Washington, D.C., failed to rule on the Northwestern University football unionization case, even after the Midwest Chicago board had defined the student-athletes as employees. Their opportunity to make this a reality was then eliminated once the Trump administration took control of the board.
Professional sports eligibility rules and the employment-status-of-the-college-athlete debate are central to the conflict between student athletes, the NCAA, and professional sports leagues. In 1983—yes, 37 years ago—as the Executive Vice President of the National Basketball Players Association, I, along with many other sports executives, including then-NFL Commissioner Pete Rozelle and then-NCAA President John Toner, testified at a hearing before the Senate Committee on the Judiciary, regarding The Collegiate Student-Athlete Protection Act of 1983. While it purported to be a bill to protect student-athletes, by encouraging them to complete their undergraduate degree before becoming professional athletes, the bill was more focused on eligibility and the commitment of athletes to complete their 4 years of athletic competition for the NCAA.
The hearing was prompted by the signing of Heisman Trophy winner Herschel Walker to a multi-million-dollar, multi-year contract with the newly formed USFL’s New Jersey Generals, prior to the completion of his college eligibility. At the time, the top college football programs feared that the potential upheaval of top student-athletes abandoning college before completing their eligibility for the riches of professional football would do great harm to the business of college football and its television content. Thus, the real intent of the bill was to preclude the professional leagues from pillaging colleges of their most talented football players before the colleges could maximize revenue.
My testimony was in direct conflict with the goals and practices of the NFL and the NCAA. And while the USFL was challenging the established practice of the parties, I spoke specifically to the NBA’s eligibility rule and how it was overturned by a successful antitrust claim brought by former NBA player Spencer Haywood in 1971. The Supreme Court ruled against the NBA, and overturned its four-year college eligibility rule, on the basis that the restraint was a group boycott. Furthermore, it ruled that Haywood would be irreparably injured if forced to remain in college in that a substantial part of his playing career would be diminished, and that he had, at 18 years of age, the right to earn a living. My testimony made the point that our experience demonstrated that the market for talent would only absorb the very best, and most talented, 18-year-olds.
John Toner’s testimony in that Senate hearing in regard to the Herschel Walker case, in my opinion, reflected that Walker was denied counsel during his decision-making process. At the time, the NCAA was hoping for an antitrust exemption for the professional leagues, but the denial of counsel was, and remains, indicative of the absence of athlete’s most basic rights (it was not until 2018, 35 years after the Collegiate Student Athlete Protection Act, that the NCAA finally granted student-athletes in college basketball the right to consult with an agent, but only while also attempting to regulate those who provide it). In the end, there was much testimony and publicity, but no Congressional action, and the total exploitation of the student-athlete by the multi-billion-dollar non-profit enterprise, the NCAA, not only continued, but also increased.
More recently, the NCAA defended its “amateur” business model in the case of Livers v. NCAA, in which a former student-athlete charged that the NCAA was violating the Fair Labor Standards Act for not compensating its players. The NCAA has relied, for decades, on Vanskike v. Peters and the 13th Amendment, which abolished slavery. Vanskike affirmed the appropriateness of non-payment only for the labor of prisoners or slaves. The symbolism of this case, in its application to the student-athlete in the revenue earning sports of football and basketball, cannot be understated. Additionally, in total disregard for athletic labor, the NCAA had a clear win in a Seventh Circuit case, Berger v NCAA, from 2016 in which the court stated, “Although we do not doubt that student athletes spend a tremendous amount of time playing for their respective schools, they do so—and have done so, for over a hundred years, under the NCAA—without any real expectation of earning an income.” Simply put, student-athletes’ “play” is not “work,” at least as the term is used in the Act.
So, now, in 2020, I have a healthy amount of skepticism regarding whether Congress will finally act to help student-athletes. Why? Race. We have witnessed, at many points in a Power Five, revenue-earning, football or basketball game, that upwards of 70 percent of the athletes on the field, or court, are Black. In the O’Bannon, Jenkins, and Alston cases, as well as the 20-year academic/athletic fraud scandal at UNC, the race issue has continued to be the “elephant in the room.” The lack of Black head coaches, university administrators, and NCAA executives adds to this racial dilemma. The race factor heightens the exploitation issue and is reflected in the below-average graduation rates among Black athletes in the revenue-earning sports of football and basketball in Power Five conferences.
In “The Shame of College Sports,” civil rights historian Taylor Branch, stated that the system has the “whiff of a plantation.” But he was most forgiving in describing it more like colonialism, “a system imposed by well-meaning paternalists.” I dispute “well-meaning.” It took controversial comedian Bill Maher to tweet, in 2014, that “March Madness is a stirring reminder of what America was founded on: making tons of money off the labor of black people” to express the growing sentiment among whites and Blacks in the debate regarding some form of compensation for these college athletes. Yet, for the unique skill the athlete has developed for a highly successful and profitable business, that athlete is the only one who cannot be compensated equitably. Political scientists Kevin Wallsten, Tatishe Nteta, Lauren McCarthy, and Melinda Tarsi completed a 2017 Political Research Quarterly study which analyzed “racial resentment” regarding paying college athletes. The study indicated that “racial resentment was among the strongest predictors of white opinion on NCAA compensation policy.”
Revenue Sharing and NIL
As a long-time advocate of the athletes, I believe someone must be able to represent their interests and establish a dispute resolution system for them, for, at this level, these non-profit educational institutions are running “for-profit” sports businesses. It would be preferable for student-athletes to have a union be their exclusive bargaining unit, but a trade association could be acceptable. Or at least, I would recommend a special master system with my personal recommendation as Judge Claudia Wilken as the special master.
The “pay-for-play” and student-athlete compensation debate has reached an all-time high in this time of racial injustice and multiracial marches throughout America. It has also raised the question of civil rights and ownership of one’s name, image and likenesses. I believe this quest for both can be achieved through revenue sharing. When NBA players and owners sat down and created such a system in the early 1980s, it was out of financial necessity. In 1980, the NBA Finals were shown on a taped delay, indicating how poorly the NBA was doing financially. A similar situation exists today, as the NCAA and its conferences face both government scrutiny and extraordinary financial losses related to the pandemic.
The only difference between the revenue sharing systems of the professional leagues and the NCAA’s revenue sharing system is the inclusion of the athletes as partners. We must recognize that, particularly, these Power Five programs are run like professional sports franchises. The primary sources of revenue for both are the same: tax funding of stadiums, sponsorship naming rights fees, season ticket sales, game day ticket sales, in-stadium or arena parking, concessions sales, and the largest: radio and TV, national and local. The aforementioned value of the athletes’ contributions, is set by the pro leagues as between 48 and 50% of a defined revenue. The NCAA created a hard cap system with the athletic scholarship with untold restrictions. Some financial reporting estimates the cost at approximately 12%. There is ample room for a more favorable distribution.
Revenue sharing can be accomplished as a remedy to the NCAA and its conferences’ dispute with the students regarding names, images, and likenesses. The NCAA and its conferences use their group, player, and university likenesses to acquire enormous rights fees from their broadcast partners. They can resolve the dispute as we have at the professional level: provide a guaranteed percentage of revenue to the student-athletes; however, in this case, the compensation would be in the form of individual trust funds: each athlete, would be entitled to the trust for the use of his likeness. It would only be accessible upon graduation. The value would be equal for all athletes based on revenue. It would be an incentive for athletes to complete their education and would act as a quality-of-life benefit to include continued medical insurance for latent injury.
The point is that far too many student-athletes in big power conferences leave colleges with nothing: no degree and no job on the professional court, field, or anywhere else in the sports industry. Many, as young Black athletes, are denied the right to set the price for their talent, not just by the NCAA, but by public sentiment. That this issue is just now coming to light after decades is an expression of exactly how entrenched racism is, and has been, in collegiate sports.
 See, e.g., Paula Lavigne, NCAA sued by 7 women for failure to protect in alleged sexual assaults, ESPN (Apr. 29, 2020), https://www.espn.com/college-sports/story/_/id/29114869/ncaa-sued-7-women-failure-protect-alleged-sexual-assaults [https://perma.cc/WT7L-F4H8]; Sean Gregory, The College Admissions Scandal Is Yet More Evidence of Collegiate Sports’ Inequality Problem, TIME (Mar. 14, 2019), https://time.com/5550994/college-admissions-scandal-sports/ [https://perma.cc/D7YY-5DN6].
 See Ross Dellenger, Coronavirus Liability Waivers Raise Questions As College Athletes Return to Campus, Sports Illustrated (June 17, 2020), https://www.si.com/college/2020/06/17/college-athletes-coronavirus-waivers-ohio-state-smu [https://perma.cc/G74R-T2A4].
 Ross Dellenger, Senators Announce Proposal for ‘College Athletes Bill of Rights’, Sports Illustrated (Aug. 13, 2020), https://www.si.com/college/2020/08/13/senators-announce-college-athletes-bill-of-rights-proposal [https://perma.cc/TXX9-BKML].
 NCAA spent $750,000 lobbying Congress to curb potential earnings for college athletes, MarketWatch (Feb. 11, 2020), https://www.marketwatch.com/story/ncaa-spent-750000-lobbying-congress-to-curb-potential-earnings-for-college-athletes-2020-02-11 [https://perma.cc/Q8KT-ZY5J].
 NCAA Board Governors, Federal and State Legislation Working Group: Final Report and Recommendations 7 (2020), available at https://ncaaorg.s3.amazonaws.com/committees/ncaa/wrkgrps/fslwg/Apr2020FSLWG_Report.pdf [https://perma.cc/9LY2-B382].
 See Estimated probability of competing in professional athletics, NCAA, http://www.ncaa.org/about/resources/research/estimated-probability-competing-professional-athletics [https://perma.cc/3FGU-GHDM] (last updated Apr. 8, 2020).
 See NIL FAQs: Group Licensing, Knight Commission on Intercollegiate Athletics, https://www.knightcommission.org/nil-faqs-group-licensing/ [https://perma.cc/6RY3-BUSN] (last accessed Aug. 30, 2020).
 See Press Release, Board Unanimously Decides to Decline Jurisdiction in Northwestern Case, Nat’l Labor Relations Board (Aug. 17, 2015), https://www.nlrb.gov/news-outreach/news-story/board-unanimously-decides-to-decline-jurisdiction-in-northwestern-case [https://perma.cc/RR7N-FUQS].
 See NLRB Rules That Football Players at Northwestern Can Unionize as Employees, McGuire Woods (Mar. 28, 2014), https://www.mcguirewoods.com/client-resources/Alerts/2014/3/NLRB-Rules-Football-Players-at-Northwestern-Can-Unionize [https://perma.cc/WQ7V-NTCV].
 See Comment, Andrew McInnis, Play Under Review: How the NLRB Failed to Protect Some of the Most Vulnerable Employees—College Athletes, 2018 Mich. St. L. Rev. 189, 194.
 The Collegiate Student-Athlete Protection Act of 1983: Hearings before the S. Comm. on the Judiciary, 98th Cong. (1983), available at https://files.eric.ed.gov/fulltext/ED240962.pdf [https://perma.cc/YGP8-6N5K].
 Haywood v. Nat’l Basketball Ass’n, 401 U.S. 1204 (1971).
 Id. at 1206-07.
 During Toner’s testimony, Senator Arlen Specter questioned the NCAA’s eligibility rules as applied to Walker, stating, “Here you have a particularly vulnerable kind of person; a young age, a difficult decision, important career choices, lots of money, lots of concern for the university. To hold a young athlete to that kind of situation is difficult.” The Collegiate Student-Athlete Protection Act of 1983, supra note 11, at 87.
 See Mark Schlabach, NCAA announces new college basketball policy, including player agents and longer postseason bans, ESPN (Aug. 8, 2018), https://www.espn.com/mens-college-basketball/story/_/id/24320401/ncaa-announces-new-college-basketball-policy-including-agents-players-longer-postseason-bans [https://perma.cc/5KFV-MRJH].
 No. 17-4271, 2018 U.S. Dist. LEXIS 83655 (E.D. Pa. May 17, 2018).
 974 F.2d 806 (7th Cir. 1992).
 See Shaun King, The NCAA Says Student-Athletes Shouldn’t Be Paid Because the 13th Amendment Allows Unpaid Prison Labor, Intercept (Feb. 22, 2018), https://theintercept.com/2018/02/22/ncaa-student-athletes-unpaid-prison/ [https://perma.cc/U5FS-LZ33].
 843 F.3d 285 (7th Cir. 2016)
 Id. at 293.
 See Diane Roberts, College Football’s Big Problem With Race, Time (Nov. 12, 2015), https://time.com/4110443/college-football-race-problem/ [https://perma.cc/FMJ4-YSHD].
 O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).
 Jenkins v. NCAA (In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig.), 2016 U.S. Dist. LEXIS 103703 (N.D. Cal. Aug. 5, 2016).
 Alston v. NCAA (In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig.), 958 F.3d 1239 (9th Cir. 2020).
 See Sara Ganim & Devon Sayers, UNC report finds 18 years of academic fraud to keep athletes playing, CNN (Oct. 23, 2014), https://www.cnn.com/2014/10/22/us/unc-report-academic-fraud/index.html [https://perma.cc/4AYF-LCMG].
 See Cameron Teague Robinson & Jon Hale, As conversations about racial inequality grow, Black head coaches continue to be overlooked, Louisville Courier J. (June 29, 2020), https://www.courier-journal.com/story/sports/college/2020/06/29/black-coaches-overlooked-conversations-racial-inequality/3256862001/ [https://perma.cc/S4XJ-WMC8].
 Ross Brenneman, Black athletes’ graduation rates lag at U.S. universities with top sports teams, USC News (Mar. 11, 2018), https://news.usc.edu/138228/leading-sports-schools-black-athletes-graduation-rates-lower/ [https://perma.cc/B7X4-SN4E].
 Taylor Branch, The Shame of College Sports, Atlantic (Oct. 2011), available at https://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/ [https://perma.cc/9TM6-B4C6].
 Bill Maher (@BillMaher), Twitter (Mar. 22, 2014, 4:16 PM), https://twitter.com/billmaher/status/447466828046934017.
 See Kevin Wallsten et al., Prejudice or Principled Conservatism? Racial Resentment and White Opinion toward Paying College Athletes, 70 Political Res. Q. 209 (2017).
 See, e.g., David Aldridge, Players: NBA Hiding Money, Washington Post (Dec. 13, 1991), https://www.washingtonpost.com/archive/sports/1991/12/13/players-nba-hiding-money/8a1027af-a1ff-4f8d-bb03-9391111dd70b/ [https://perma.cc/TM6D-Y543].
 Judge Wilken has been involved with multiple cases regarding the NCAA’s compensation model. See Michael McCann, Why the NCAA Lost Its Latest Landmark Case in the Battle Over What Schools Can Offer Athletes, Sports Illustrated (Mar. 8, 2019), https://www.si.com/college/2019/03/09/ncaa-antitrust-lawsuit-claudia-wilken-alston-jenkins [https://perma.cc/8HMT-TTV7].
 See Thomas Golianopoulos, “It Was All About Money”: An Oral History of the 1998-99 NBA Lockout, Ringer (Feb. 14, 2019), https://www.theringer.com/nba/2019/2/14/18222040/lockout-1998-99-season-david-stern-david-falk-billy-hunter-patrick-ewing-michael-jordan-oral-history [https://perma.cc/VB4Y-X6PU] (“[I]n 1983, with the [NBA] in financial peril, the players negotiated a collective bargaining agreement that included a revenue-sharing, soft-salary-cap model, the first of its kind in the four major professional sports leagues.”).
 See Steve Aschburner, 17 NBA things that have been ghosted from memory, NBA.com (Oct. 31, 2019), https://www.nba.com/article/2019/10/31/nba-things-have-been-ghosted [https://perma.cc/C7XX-5ER4].
 See Jakob Eckstein, How The NFL Makes Money, Investopedia (Sept. 24, 2019), https://www.investopedia.com/articles/personal-finance/062515/how-nfl-makes-money.asp [https://perma.cc/4ECM-XSQH].
 See Sheryl Ring, Let’s Talk About Revenue Sharing, SBNation: Beyond Box Score (May 14, 2020), https://www.beyondtheboxscore.com/2020/5/14/21257343/lets-talk-about-revenue-sharing [https://perma.cc/27P7-5PDL].
 See Senator Chris Murphy, Madness Inc.: How everyone is getting rich off college sports – except the players 7 (2019), available at https://www.murphy.senate.gov/imo/media/doc/NCAA%20Report_FINAL.pdf [https://perma.cc/28N2-Z2HT].
 See, e.g., Frank Pallotta, NCAA extends March Madness TV deal with Turner, CBS until 2032, CNN (Apr. 12, 2016), https://money.cnn.com/2016/04/12/media/ncaa-march-madness-turner-cbs/index.html [https://perma.cc/8MC9-TTDV].