VI. Conclusion
Federal courts have played a pivotal role in the evolution of college sports. The most significant court case to date is Board of Regents.
Board of Regents gave big-time football its financial and regulatory freedom. It opened the broadcast media floodgates and breathtaking revenue streams that are still growing. It has also resulted in the hyper-professionalization and commercialization of all college sports products.
Federal court decisions have provided the NCAA (and, to a lesser extent, the Power 5) a formidable firewall to liability and responsibility in exercising regulatory authority.
Athletes’ rights cases have resulted in only modest, permissive adjustments to the benefits offered to athletes. The basic labor relationship between athletes and institutions has changed very little since the NCAA fixed the cost of athlete labor at the value of an athletics scholarship in 1956.
Moreover, and importantly, these cases have not resulted in athletes having more power.
If offered, the full cost of attendance scholarship from O’Bannon, plus the Alston education benefit, totals approximately $10,000 per year.
This modest increase resulted from over a decade of federal litigation and pales in contrast to athletes’ true value—particularly Power 5 football and men’s basketball players.
In 2014, civil rights historian and author Taylor Branch testified at a Senate Commerce Committee hearing (“College Athletes and Academics”) when the NCAA—through Mark Emmert—tried to make the Power 5’s case for the Autonomy classification and its legislative prerogatives.
The Autonomy prerogatives—applicable only to the Power 5—included the FCOA, relaxing restrictions on how much food athletes could receive, enhanced academic support staff, and the option to offer four-year scholarships.
In his closing comments, Branch likened the Autonomy benefits to tips that a waiter might get.
Taylor suggested that these modest adjustments to athlete benefits are insignificant compared to the true value athletes bring to their institutions, conferences, and the NCAA.
Also, importantly, Branch observed that looking to the sixty-five Power 5 schools as the agents of change in athletes’ rights was foolhardy because they have the least incentive to change the status quo.
Now, with the developing NIL market, the NCAA and Power 5 argue that athletes are getting more than they deserve.
While the athletes settle for tips and a few make closer to their market value through NIL, the stakeholder beneficiaries of the status quo are feasting at the table of a historic bull market in college sports revenues.
They do so knowing that the legal environment they feel so threatened by has been quite deferential to their interests.
Will that deference continue? We don’t know.
But athletes, as always, face a daunting task if they seek change through federal litigation.
Federal litigation has provided athletes with additional “compensation," but it has not given them more power.
