College sports are in a state of upheaval. Recent legal outcomes and legislative maneuvers have continued to upset the control of the NCAA as pandemic-induced turmoil has thrown competition schedules completely out of whack. The state of college sports is in flux, and this is the perfect time to check in on the industry as another season is set to warily begin. In Part 1 of this two-part series, we’ll explore how “post”-pandemic return-to-play plans have facilitated an unprecedented moment in student-athlete organizing and collective action. In Part 2, we’ll examine how the NCAA has continued to move forward on amending rules related to name, image, and likeness (“NIL”) while another landmark case on student-athlete compensation was decided on appeal in the Ninth Circuit.
The State of College Sports, Part 1: Return-to-Play
In March, the coronavirus pandemic hit the United States. The Ivy League cancelled its men’s and women’s basketball tournaments, and the rest of the college sports world soon followed suit. In early July, the Ivy League cancelled competition for all of its upcoming fall sports. Since then, the NCAA, its member conferences, and institutions across the country have grappled with decisions over if, how, and when to resume athletic competition.
College sports are made up of three divisions: NCAA Division I, II, and III. In football, NCAA Division I is further divided into the Football Bowl Subdivision (FBS) and the Football Championship Subdivision (FCS), while the top leagues in the FBS comprise the “Power 5” conferences. Return-to-play decisions across the various NCAA divisions, football subdivisions, and conferences have been fragmented, to say the least.
Initially, all Power 5 college football was set to return September 3, a couple weeks later than usual, when the Big 10 Conference announced the adoption of an 10-game, conference-only scheduling model. The other Power 5 conferences implemented similar plans, with the SEC, ACC, Big 12, and Pac 12 announcing modified football schedules for the upcoming fall season and slight delays to fall sports competition. Return-to-play plans, however, were much less consistent among schools outside the Power 5 conferences and in the FCS. The Patriot League, Colonial Athletic Association, Mid-Eastern Athletic Conference, America East, and Southwestern Athletic Conference all announced the cancellation or postponement of fall sports. The University of Connecticut, which plays football as an independent, became the first FBS school to suspend its football program for the 2020 season, and the Mid-American Conference became the first FBS league to postpone competition in all of its fall sports, including football. The Mountain West came to a similar conclusion on postponement, while the American Athletic Conference, Conference USA, and Sun Belt Conference planned to play on. Then, in a relatively surprising about-face, the Big 10 and Pac 12 decided to reverse their earlier decisions and postpone their fall sports seasons, further splintering return-to-play plans among the Power 5, as the ACC, SEC, and Big 12 have remained steadfast in their attempts to play fall sports.
The cancellation of previously scheduled non-conference football games casts doubt on the status of guaranteed payments for those games. Typically, top-level schools contract lower quality opponents to pay those schools for the honor of (often) getting beaten in an early-season non-conference game. USA Today obtained contracts for 36 games that were cancelled as a result of the SEC’s pandemic-revised scheduling model, calculating total payouts for those games at over $35 million. Whether SEC schools remain obligated to pay on those contracts, despite the cancellation of games, is the key question. The language in each individual contract will dictate how conflicts over guaranteed payments are resolved; however, some teams have language in the contracts that stipulate that scheduling changes made by the conference renders the contract null and void. On the one hand, University of Louisiana-Monroe athletic director, whose football team was to receive $3.15 million for games against Georgia and Arkansas, said his team is prepared to fulfill their contractual obligations and that his department is not operating under the assumption that Georgia and Arkansas can just forfeit their guaranteed payments. On the other hand, athletic directors at some paying schools seem to be taking the position that they have no financial obligations for cancelled games, although there may be negotiated agreements for rescheduled, future games.
Seemingly in response to the haphazard nature of return-to-play, hundreds of major-conference football players have organized in an unprecedented fashion, calling on conferences to respond to various health, economic, and social justice-related demands. On August 2, a group of Pac 12 football players wrote a letter to the conference threatening to opt out of the season if certain demands were not met. Among those, the players are asking for health and safety protections amidst the pandemic, for the conference and schools to cut expenditures in order to maintain existing sports, for the conference to address racial injustice with various measures, and for the implementation of certain economic policies related to NIL and other financial benefits.
As the Pac 12 players have had ongoing conversations with their conference, they were joined by similar movements by players of the Big 10 and Mountain West. The demands made by the players generate a host of interesting legal questions, and it will be interesting to follow the course of the discussions and the results that may have on the state of college sports. However, it will be much more important to follow the long-term implications of the movement to the extent that college athletes may become more empowered to advocate for greater protections and more benefits. As rumors circulated that the major conferences were considering cancelling the fall season, football players across the country joined a #WEWANTTOPLAY campaign, spearheaded by Clemson star quarterback Trevor Lawrence. While seemingly at odds with the Pac 12’s #WEAREUNITED activity at first blush, the two organizing campaigns actually joined together to advocate for the safe return of college sports and, more generally, for greater transparency and more player involvement in NCAA and conference decision-making, which would ultimately involve the creation of a college football players association.
This recent instance of organizing represents college athletes’ most intentional effort at collective action since football players at Northwestern University sought unionization in 2014. In that case, the NLRB declined to assert jurisdiction, leaving open the question of whether college athletes are employees of the universities for which they play with the right to unionize and bargain collectively. Whether organizing by college athletes realizes actual legal change is perhaps less important than its effect on the standard operating procedure of college sports. As one athletic director at a Power 5 conference school anonymously texted a college football reporter:
“You and your colleagues are chasing the wrong story. The virus alone is enough to stop the season. But presidents are terrified of players organizing. It’s the paradigm shift to change amateur sports. You potentially lose one season with the virus. You lose the entire framework of your mission statement with players organizing. They need time to figure out how to attack it.”
At the same time, player organizing may not be the only thing facilitating a “paradigm shift” in college sports. Amid the pandemic, Congressional enthusiasm for the regulation of college sports has remained. On August 13, a group of Democratic lawmakers released a proposal for a college athlete “Bill of Rights,” with formal legislation to be introduced within the next few months. The framework addresses a number of issues, including:
- A prohibition on NCAA restrictions on student-athlete compensation, allowing athletes to profit from the use of their NIL and to negotiate revenue-sharing agreements with their conferences and schools;
- Transparency and information-sharing responsibilities for schools, particularly in the reporting of various financial data;
- Loosening restrictions on transferring and commitments to schools after the signing of a National Letter of Intent;
- Implementing comprehensive health care coverage and financial assistance for athletes with injury-related medical bills; and
- Establishing a permanent commission to “give athletes a meaningful voice.”
Although federal legislators initially took up this issue in response to the handful of state bills allowing college athletes to monetize their publicity rights and NIL, the scope of the matter has clearly expanded. The NCAA, however, remains laser-focused on the NIL issue specifically, which we investigate in Part 2 of this series and the detailed legal implications of which you can read more about in The Harvard Journal of Sports and Entertainment Law’s NIL Special Issue.
Alex Blutman is the Managing Editor of Online Content for the Harvard Journal of Sports and Entertainment Law and a second-year student at Harvard Law School (Class of 2022).