III. The “Pendulum Problem”

A pendulum metaphor illustrates college sports’ current regulatory, legal, and financial environment and where athletes truly sit in their relationship with institutional stakeholders.

College sports’ regulatory and business models have been impervious to meaningful reform. Through milestone events portrayed as threats to whatever status quo existed at the time, college sports’ institutional and corporate overlords have retained iron-fisted control over every aspect of the industry.

The pendulum points above and discussed below show the decades-long tension between institutional control and athletes’ rights, between past and future, and between mythology and reality.

 A. The Red Ball (NCAA Deference “Stuck Point” 1956 – 2014)        

The red ball represents the monopoly the NCAA (and later the Power 5) has had over the regulation and business model of college sports. This is the “stuck” point in favor of NCAA/Power 5 interests.

The college sports regulatory and business models have been in this position since the 1950s and have barely budged.

Throughout this era of allegiance to NCAA authority, stakeholders and consumers have been conditioned to think about college sports and the relationship between athletes and institutions through the lens of “amateurism,” the “student-athlete,” and the “collegiate model.”

These foundational mythologies of college sports have acquired an unchallengeable secondary meaning in American culture as expressions of integrity and virtue. The NCAA and Power 5 have positioned these values as a “clear line of demarcation” between college and professional sports.

Crucial external decision-makers such as federal courts, Congress, state legislatures, and administrative agencies have routinely “bent the knee” to the NCAA and reinforce its place as the only legitimate occupant of the Iron Throne of college sports regulation.

Through decades of NCAA propaganda and cultural acquiesence to college sports’ mythology, most Americans view the NCAA/Power 5 “stuck” position as true equilibrium and the starting point for assessing athletes’ interests and “progress.”

 B. The Blue Ball (Cumulative Impact of Athlete Challenges to NCAA Amateurism-Based Limits in 21st Century)

This pendulum point represents the net progress in athletes’ rights in the 21st century. 

In the space between the red and blue balls sits

(1) federal antitrust litigation (permissive full cost of attendance benefit from O’Bannon in 2015, permissive education benefits from Alston in 2021),

(2) permissive Power 5 Autonomy legislation benefits (2014-2015),

(3) employee status fact-finding through an administrative agency (Northwestern NLRB action in 2014 and the USC and Dartmouth NLRB cases from 2022-2024),

(4) NIL opportunities for deals with third parties (2021), and

(5) the one-time transfer option (2021).

Is this progress from the 1956 athletic scholarship? Yes. 

The modest financial enhancements are particularly important to athletes who come from challenging financial circumstances.

Is it meaningful progress consistent with fundamental American principles of economic liberty and the ability to take one's talents and skills into the marketplace and get what the market says they are worth?

Reasonable people can differ, but we think not.

In each case, these modest changes in athlete benefits resulted from external regulators forcing the NCAA and Power 5 to change.

For example, while the NCAA and Power 5 shamelessly claim credit for the full cost of attendance scholarship stipend (FCOA), it took two federal class-action lawsuits (White and O’Bannon; discussed in more detail below), ten years, and over $140 million in legal fees and settlements to make the possibility of an FCOA stipend a reality.

Even this modest benefit enhancement came at a significant cost. The legal ruling from the 9th Circuit in O’Bannon was very deferential to the NCAA’s conceptualization and use of amateurism.

The court held that athlete compensation had to be tied to education and could not be pay-for-play. This effectively granted the NCAA and Power 5 limited antitrust immunity from any market for the full value of athletes’ services.

Alston, which came after O’Bannon, did not disturb O’Bannon’s no-pay-for-play limitation because the athletes chose not to challenge it in the NCAA’s appeal to the Supreme Court.

While the Supreme Court’s unanimity in Alston sent a powerful message to the NCAA questioning the future of amateurism, it was largely symbolic.

The net effect of Alston was that (1) the NCAA and Power 5 were not entitled to judicially created antitrust immunity, and (2) schools were permitted (but not required) to offer modest education-related benefits amounting to $5,890 per year for athletes who meet their school’s eligibility requirements.

Many schools do not offer Alston benefits or provide less than the maximum of $5,980.

Perhaps most important, however, is that even with additional athlete benefits, the NCAA’s core compensation limits and the legal relationship between athletes and institutions have not changed much.

“Amateurism,” the “student-athlete,” and the “collegiate model” are as alive today as they were before O’Bannon, Alston, the unresolved NLRB cases, the new NIL market, and the one-time transfer markets.

In addition, the NCAA and Power 5 continue to press Congress for breathtaking federal protections and immunities that would allow them to roll back the NIL and transfer markets and impose their compensation limits and eligibility rules on athletes without legal accountability.

The Dartmouth men’s basketball team’s successful unionization attempt has grabbed headlines, but its effect is likely to be marginal if it is not overturned in the current appeal process, which could take two years.

Dartmouth is an outlier in Division I sports as a member of the Ivy League. Dartmouth is not in the big-time college sports sweepstakes, and it has a history of student worker unions (non-athletes). Any potential collective bargaining benefits the players may get at some point down the line are likely to be modestly aligned with what other student labor organizations have achieved.

Moreover, the Dartmouth case has not resulted in a domino effect of teams seeking unionization.

In short, while athletes have more in the way of enhancements to the old athletic scholarship, they have no more power—at least not yet—than they did before O’Bannon.

   C. The Black Ball (Reality-Based Equilibrium)

The black ball represents a true, reality-based equilibrium free from NCAA and Power 5 mythology, fearmongering, and seven decades of iron-fisted control over college sports’ regulatory and financial markets.

The black ball assumes a hypothetical bargaining table where all interested stakeholders have an equal seat and equal standing.

The NCAA, Power 5, and athletes would bargain in good faith to come to a sensible agreement that addresses their respective interests and leads to labor harmony and an enforceable contract. All parties could have their lawyers, accountants, financial advisors, and agents weigh in as the negotiations played out. 

This scenario shouldn’t be difficult to imagine or replicate because it has been in place (and fine-tuned) over the last fifty years in professional sports.

Will there be challenges? Yes.

Will there be difficult line drawing and judgment calls? Of course.

But is it impossible? No.

The problem for athletes is that the only parties at the college sports bargaining table are the NCAA, the Power 5, Congress, and class action antitrust lawyers.

In response to the increasing pressure from external regulatory forces, the NCAA and Power 5 have chosen to do their “collective bargaining” with everyone except the athletes.

The NCAA’s and Power 5’s terms are non-negotiable: (1) the elimination of state legislatures from the regulatory field through preemption, (2) the elimination of federal courts through antitrust immunity, and (3) a federal prohibition on athletes being employees that would make it impossible for athletes to benefit from federal labor laws.

   D. The Green Ball (False Progress Point: What the NCAA/P5 Want Stakeholders and the Public to Believe)

The green ball represents a false reality/progress point. This is where the NCAA and Power 5 want stakeholders, decision-makers, and the public to believe athletes now sit.  

If you were to poll Americans on the current relationship between athletes and institutions using the pendulum metaphor, they would likely point to the black or green balls or some point in between.

That is a victory for the NCAA/P5.

Many Americans believe that because athletes now have NIL opportunities and more mobility in the transfer market, they should sit down and stop complaining. “Problems solved” or “Enough is enough” seems to be a common public sentiment.

The NCAA and Power 5 have created a formidable NIL and transfer “wall” to deter further discussion on athlete benefits.

Health and safety issues, meaningful representation in NCAA/Power 5 decision-making processes, employee status, work conditions, and meaningful revenue sharing now sit behind this barrier.

The NCAA and Power 5 are using the NIL/transfer wall as a temporary measure until they achieve legal protections and immunities from Congress that will allow them to regain iron-fisted control over the regulation of college sports and the ability to restrict the existing NIL and transfer markets and prevent athletes from being employees.

The pendulum problem sits so deeply in the DNA of the current college sports business model that even “progressive” stakeholders, decision-makers, athletes’ rights advocates, and athletes themselves fall prey to it.

   E. The Pendulum Mindset: How Should We Measure Progress?

The dynamics illustrated by the green ball results in narratives built around the assumption that stakeholders should assess athletes’ interests and “progress” by comparing what they have now to what they had (or didn’t have) before.

This is “bottom-up” thinking.

It excludes two crucial and intertwined components of a reality-based assessment of athletes’ worth to the system: (1) the actual market value of athletes’ services and (2) the exponentially increasing value of the overall college sports marketplace.

(Knight Commission 2023)

Through fifteen years of antitrust litigation (that cost over $300 million), athletes have won two financial benefits: (1) the full cost of attendance stipend and (2) the Alston education benefit.

Both have been framed as education-related and folded into the full athletic scholarship.

Importantly, these enhancements are not linked to athletes’ market value or account for the massive upward spiral in the overall college sports marketplace.

The permissive full cost of attendance scholarship (ranging from approximately $3,000 - $6,000 per scholarship athlete per year) is calculated from federal financial aid guidelines that account for incremental and modest increases in college costs on a year-to-year basis.

Similarly, the permissive Alston education benefit is currently fixed at $5,980. The injunction permitting the benefit does not mention a specific dollar amount. Instead, it says that Power 5 universities cannot cap the education benefit below the total amount that those schools are allowed to pay athletes for athletic performance awards.

That amount is now $5,980 per NCAA rules permitting athletic-related awards.

Theoretically, that number could increase if the NCAA raises the ceiling on permissible athletic awards, but that is unlikely to occur.

Thus, the permissive cost of attendance stipends and Alston education benefits are essentially fixed.

The NCAA and Power 5 reinforce “bottom-up” thinking by constantly reminding decision-makers and the public that athletes have never had it better!

And guess what? They are right. 

Before external regulatory pressures forced the NCAA into nominal changes in athlete benefits, athletes didn’t have (1) enough money to pay for basic living expenses, (2) adequate food, (3) scholarship security, (4) educational benefits, (5) a one-time transfer option, and (6) “NIL compensation.”

Many athletes lived in poverty and fear.

The laundry list of benefits listed by the former Big 12 Commissioner Bob Bowlsby in the video above (from his testimony at the February 11, 2020, hearing in the Senate) are not the product of magnanimity by Power 5 conferences.

They are the product of litigation and Autonomy legislation in 2015.

The Autonomy benefits, in addition to the full cost of attendance, such as adequate food, medical and educational benefits, “travel opportunities,” and “high-level” coaching, serve primarily institutional interests in acquiring the best football and men’s basketball talent in the marketplace.

The benefit to athletes is incidental to that primary purpose.

The invocation of Pell Grants and the implication that those are athletic benefits provided by schools is false and misleading.

Pell Grants are available to all college students who demonstrate substantial need under federal financial aid guidelines. The majority of students qualifying for Pell Grants are students of color from challenging financial circumstances.

Moreover, Mr. Bowlsby and other NCAA/Power 5 leaders who use the Pell Grant to support their “look how good these athletes have it” argument fail to point out that until the mid-1980s, schools confiscated athletes’ Pell Grant money in whole or part to offset the cost of an athletic scholarship.

Undoubtedly, the full cost of attendance scholarship, the Alston education benefit(s), and evolving—but tenuous—NIL and transfer marketplaces are important enhancements, particularly for athletes from modest financial circumstances.

However, the existence of these benefits and discussions over whether athletes should have more (as athletes’ rights advocates contend) or less (as the NCAA and Power 5 lobby to Congress) begs two important questions: (1)what is the correct yardstick for measuring athlete “progress,” and importantly, as discussed below, (2) who gets to decide?