Will college athletes soon be paid for their work?

The Supreme Court has kept NCAA's amateurist model for college sports intact. But more legal challenges are on the horizon.

Isaac Brekken/AP/File
Former UCLA basketball player Ed O'Bannon Jr. sits in his office in Henderson, Nev., Sept. 18, 2010.

The US Supreme Court declined to hear an appeal of a class-action lawsuit originally brought in 2009 by former UCLA basketball star Ed O’Bannon over compensation for college athletes.

The decision preserves the status quo, in which athletes can receive no more than scholarships for the full cost of attendance. But it also sets up the possibility that new legal challenges brewing against the NCAA could dismantle the current amateurist model.

Mr. O’Bannon and other former athletes who joined the suit argued that the NCAA was violating antitrust laws by barring athletes from claiming compensation for the use of their image, names, and likenesses. More than two years ago, a federal judge ruled in O’Bannon’s favor, while allowing the NCAA to set a yearly pay cap of a little less than $5,000.

But after the NCAA appealed, an appeals court threw out the part of the decision allowing compensation, even as it upheld the ruling that the association was violating antitrust law.

The Supreme Court's refusal to hear an appeal "means the status quo has been preserved for a while longer," antitrust attorney Robert Boland told ESPN.

Two other cases now being heard in lower courts, notes InsideHigherEd, take aim at rules against compensating athletes beyond the cost of attendance. One, filed on behalf of former Clemson University football player Martin Jenkins, seeks to cut away all limits to compensation, in a case that would revolutionize the relationship between athletes and universities – and perhaps even the relationship between athletes and the sports they play.

In 2014, The Christian Science Monitor took stock of the disagreement lying at the heart of the O’Bannon case and others like it:

The NCAA has fought all attempts to pay student athletes for their performance, claiming that amateurism is foundational to college sports. “The collegiate model of sports provides hundreds of thousands of student-athletes with unmatched opportunities for education, growth, mentoring, and future success,” NCAA Chief Legal Officer Donald Remy said.

But critics suggest that the notion amateurism no longer reflects the realities of a multibillion-dollar business. It’s time for the NCAA to pay those who produce the product, they say.

College athletes seeking changes to the current system were dealt a setback in 2015, when the National Labor Relations Board (NLRB) shot down a petition from Northwestern University’s football team for union status, finding that its impact on college sports "would not serve to promote stability in labor relations."

That campaign, motivated by players’ sense that they were effectively employees of the university and should be compensated as such, was spearheaded by former Northwestern quarterback Kain Colter, as the Monitor reported in 2014.

[Mr.] Colter estimates that he spent as many as 60 hours a week on football-related activities during summer training camps. During the season, which fell to 40 to 50 hours a week, he said in testimony to the National Labor Relations Board (NLRB) in February.

“Everything we do is scheduled around football,” he said, suggesting that advisers warded him away from classes that might interfere with the football workload. “We’re brought to the university to play football.”

That’s why Mr. Colter led the push to unionize Northwestern’s football team.

The outcome of the O’Bannon case puts the question of compensation into a limbo of sorts. But athletes looking to bring antitrust cases against the NCAA "now have a road map," said Marc Edelman, an antitrust expert and law professor at Baruch College, in an interview with InsideHigherEd.

"Future cases will be decided on the facts of the case and on whether the payment of athletes would or would not harm consumer demand. The legal burden has already been met," he said.

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