Whether to compensate college-athletes is a tricky topic and has been a long-standing debate that draws many differing opinions and viewpoints. Some argue that a free education is more than enough compensation for college-athletes because college is an invaluable experience and attaining a college degree is an accomplishment that many gifted and hardworking Americans struggle to even afford. Moreover, compensating college-athletes may send the wrong message to other college students, many of which incur student loans, work part-time or full-time low-paying jobs, and intern at various places for free. Overall, the thought of college-athletes getting any sort of compensation beyond a free opportunity to pursue a degree just for playing a sport is incomprehensible for some people – maybe even immoral.
However, it is hard to ignore the amount of money that college-athletes generate for their school and the National Collegiate Athletic Association (NCAA), which is the association that regulates and organizes college athletic programs. In 2014 alone, the NCAA generated $989 million. Of that amount, $547.1 million was distributed to Division I schools and conferences. The income, which is generated by television deals, ticket and jersey sales, likeness, promotions and more, go to the NCAA, the schools, the coaches, and everyone else involved in the business. None, however, trickled down to the athletes creating the income. Why may this be problematic? A vast majority of the money that is generated by the NCAA comes from the football and basketball programs. Both of those sports are predominately played by Black people, many of whom come from poor and humble backgrounds. Yes, college athletes receive an athletic scholarship which provides them with free education. However, Black male college football and basketball players are less likely to graduate college with degrees than Black males who are not athletes at the same schools.
So are college-athletes really receiving fair value of their athletic scholarships if they are not even able to fully capitalize on the free education that the athletic scholarship provides? Even if the NCAA did decide to pay college-athletes, should every college-athlete be compensated monetarily or should only the athletes that actually generate the income (namely football and men/women basketball players) be compensated? In what shape, form, or amount should college-athletes be compensated? What legal avenues can college-athletes take to fight for compensation? What legal ramifications, if any, could potentially occur if college-athletes were compensated beyond athletic scholarships? These questions and more are the sort of things one must consider when analyzing this complex issue.
This article will examine the status quo of college-athletes not being compensated beyond athletic scholarships. Part I will discuss whether college-athletes attain legal rights when they play college sports or if their participation in college sports is merely a privilege. Part II will address whether college-athletes classify as employees under the Fair Labor Standards Act. Part III will explore the impact that the concept of amateurism has on Black college-athletes. Part IV will assert feasible methods to compensate college-athletes.
I. PRIVILEGE v. RIGHT
The starting point for understanding the relationship between the NCAA, a college, and its college-athlete is the athletic scholarship. The athletic scholarship creates a direct contractual relationship between the college-athlete and their school, while also making college-athletes third-party beneficiaries of the contractual relationships between the NCAA and its members.
One case that demonstrates this contractual relationship is Taylor v. Wake Forest University, which involved a college football player that stopped participating in practices and other football activities after one semester of academic ineligibility during his freshman year. Even though the student later received grades sufficient to resume athletics, he continued to skip football activities during his sophomore year in order to focus more on class. Wake Forest University continued to provide the student with a scholarship during his sophomore year, but then terminated the student's scholarship once his sophomore year ended. The student’s position during the case depended on an oral agreement between himself and the representative of Wake Forest, which was that: “[I]n the event of any conflict between educational achievement and athletic involvement, participation in athletic activities could be limited or eliminated to the extent necessary to assure reasonable academic progress.” The student argued that he was the judge of what “reasonable academic progress” constituted, but the court disagreed. The court reasoned that because the athletic scholarship was “awarded for academic and athletic achievement,” the student agreed to maintain his athletic eligibility, which meant both physically and scholastically. The student maintained his scholastic eligibility by maintaining grades higher than Wake Forest’s standards. However, when the student refused to practice just in order to devote more time to studies, he did not maintain his physical eligibility, and therefore he was “not complying with his contractual obligations.”
As the aforementioned case illustrates, college-athletes do not have a right to education or a right to the sport they play when they receive an athletic scholarship. Instead, education and sports are a privilege. The same way a college-athlete can lose his scholarship for not fulfilling his athletic duties, the college-athlete can lose his athletic privileges if he does not maintain a certain grade point average or stay in good standing with the school. The inherent issue with athletic scholarships, however, is that education is not valued more than athletics. On the contrary, college-athletes devote considerable more time playing and practicing than they do for class. If the very crux of the NCAA’s unwillingness to compensate college-athletes is that they are a student first, athlete second (hence the term “student-athlete”), then shouldn’t the athlete’s education be prioritized over their sport?
Yes, college-athletes at most programs have mandatory tutoring sessions. However, the hours that college-athletes must dedicate to a sport make it difficult for them to study outside of class and those tutoring sessions. Furthermore, many college-athletes end up settling for “less-demanding” majors because that is all they could handle or the coaches tell them to, which leaves them with little to fall back on if their sports career do not work out. Devon Ramsay, a former North Carolina football player, even once stated about his school that, “There exists a culture that demonizes anything that doesn't directly help the program.” This is not to imply that other schools share that same mantra, but the quote suggests that having a job, doing an internship, joining a club, or participating in any other activities is frowned upon in the student-athlete culture. Even if schools are providing college-athletes with free education, is the school really doing college-athletes a service by requiring so much time for sports? Black athletes especially suffer because they are unable to truly equip themselves with the educational resources that they were provided during their short time at college.
Interestingly enough, a majority of courts have found that a special relationship exists between a college and a recruited student-athlete “based on the nature of the college’s efforts in bringing that specific student to campus with a promise to provide him or her with an athletic scholarship.” This special relationship only extends to a duty of care to protect the athlete. For example, in Kleinknecht v. Gettysburg Coll., a lacrosse player was injured on the practice field and died because emergency services did not get to him in time. The player’s estate sued the university claiming that it had a duty to provide proper care to him. The court agreed that the university owed a duty of care to the player because a special relationship existed between the player and the university since the university specifically recruited him to play lacrosse and he died during a scheduled athletic practice. Courts have also held in other instances that this special relationship leads to a duty for schools to give adequate instruction in athletic activity, supply proper equipment, make a reasonable selection or matching of participants, provide non-negligent supervision of the particular contest, and take proper post-injury procedures to protect against aggravation of the injury. While courts are right to hold that schools have a duty of care to protect athletes they recruit due to a special relationship, this special relationship should also create a duty of making sure athletes are equipped to graduate with at least a solid grasp of their future plan, whether it be helping them apply to graduate school, find a job, etc.
Unfortunately, courts have continuously held that athletic scholarships do not automatically insure educational legitimacy. For example, in Ross v. Creighton University, Kevin Ross, a star basketball player who allegedly graduated his school possessing the language skills of a fourth-grader and the reading skills of a seventh-grader, sued the school for failing to give him a meaningful education. The case ended up being remanded to the lower courts, but the Seventh Circuit Court of Appeals did hold that in order to state a claim for breach of contract (in this case the athletic scholarship) the plaintiff “must do more than simply allege that the education was not good enough.” Instead, he must point to an identifiable contractual promise that the defendant failed to honor, such as if the defendant promised a set number of hours of instruction and then failed to deliver. Another example is Hendricks v. Clemson University, where the court held that a college athlete did not have a claim against his school even though the school’s own error led to his ineligibility. In that case, a college baseball player transferred to Clemson University and met with an academic advisor who gave the player bad advice that ultimately led to his inability to meet the NCAA’s academic progress rules. As a result, the athlete never played baseball at Clemson. The college-athlete sued claiming that the advisor’s errors breached his contract with the school, but the court disagreed because nothing in his contract with the university ensured he would maintain his academic eligibility.
Overall, playing sports is a privilege. Education is also a privilege. However, when playing sports begin to overstep your education privileges, then it is time for courts to blow the whistle and call foul.
II. STUDENT-ATHLETE v. EMPLOYEE
Employees get paid by their employer. Student-athletes get paid in the form of scholarships by their college. Does that mean that student-athletes are actually “employees” of the university and deserve benefits similar to regular employees? The answer to this question has been the long-standing obstacle preventing college athletes from receiving compensation. If you have not guessed the answer by now, it is no, at least according to the courts. While the Fair Labor Standards Act (FLSA) only defines “employee” as someone who performs “work” for an “employer,” courts consistently hold that playing a sport for college is no more than extracurricular activity or is the equivalent to an internship as defined in the FLSA.
Since college-athletes are not recognized as employees, they are not entitled to worker’s compensation benefits due to temporary or permanent physical claims. For example, in State Comp. Ins. Fund v. Indus. Accident Comm’n, the court held that the widow of a college football player that died after suffering an injury during a football game was not entitled to worker’s compensation because there was no existence of a contractual obligation to play football between the decedent and the university. The very few cases that found college-athletes to be employees within the workers’ compensation contexts is because the student-athlete was separately employed by the university as well as involved in athletics.
Most recently, in 2016, the U.S. Court of Appeals for the Seventh Circuit held in Berger v. National Collegiate Athletic Association that college-athletes are not employees and are not entitled to a minimum wage under the FLSA. In that case, members of the University of Pennsylvania women's track and field team argued that they fit the definition of “employee” under the FLSA, but the court reasoned that students at colleges who participate in sports do so to benefit their experience at college. Furthermore, the court reasoned that the Department of Labor has not taken any action to apply the FLSA to college athletes despite the fact that it is not a secret that college athletes are unpaid. One important fact to note that may or may not have been relevant in the court’s decision is that members of the University of Pennsylvania women’s track team was a team composed of athletes who do not generate revenue or receive scholarships.
Thus, while this case definitely set back the college athletes’ economic rights movement, college athletes should still continue to pursue legal claims as long as the facts of their case provide more economic proof that they deserve compensation.
III. RACE-NEUTRAL AMATEURISM v. RACE-IMPACT AMATEURISM
The economic exploitation of college athletes remains race-neutral on its face today. Simply put, college-athletes are labeled as amateurs, and amateur sports athletes do not get paid. There also really is not anything inherently racist about the concept of amateurism. American colleges capitalized on this concept in the beginning of the 20th century, which is when their sports and campuses, like society at large, were still segregated. Thus even now, the strict rules that the NCAA has put in place has prevented White college athletes and Black college athletes alike from cashing out on their skills and popularity, as well as punished White college athletes and Black college athletes for accepting money from college officials or representatives. However, statistics and financial numbers show that while the NCAA’s intent of prohibiting all college athletes from getting paid seems color-blind, the impact of amateurism is definitely not.
The two biggest money-makers in college sports are easily basketball and football. The NCAA currently have deals in place that allow them to generate roughly $700 million annually from CBS, Turner, and ESPN for the broadcast rights to their annual national basketball tournament, March Madness – a sum that will jump to nearly $900 million per year from 2019 to 2024. ESPN is paying the NCAA $7.3 billion over 12 years to televise the College Football Playoffs and four other bowl games, which is about $470 million annually, or roughly $67 million per contest. The SEC, a major football conference, made a NCAA record $455.8 million during the 2014-15 season through their television deal. No matter how you slice the pie, college basketball and football make a lot of money.
None of that money trickles down to the athletes, however, which disproportionately affects Black athletes. 58.3 percent of Division I basketball players and 47.1 percent of Division I football players in 2014-15 were Black, making them the largest racial group in both sports. What makes this harder to swallow is the fact that the money generated by college athletes does somehow find a way to trickle down to those with leadership positions in the NCAA and coaches, most of which are White. For example, NCAA president, Mark Emmert, was paid $1.8 million in 2013. Each of the five power conference commissioners, all white men, earned between $2.1 million and $3.5 million the same year. 37 of the 68 head coaches in the 2016 NCAA men’s basketball tournament made more than $1 million annually. Jim Harbaugh, the highest paid college football coach in 2016, made $9,004,000 that year.
The financial numbers only show the surface level of the amateurism business model, but the impact on a human level is real too. Billy Hawkins, a University of Georgia professor who studies the sociologies of sports, once said “Several Black athletes have told me how even when they get a [cost-of-living] stipend, they have to send it back home to help family out…Whereas the majority of white athletes coming from middle class families don't have those same responsibilities.” Therefore, “even if and when white athletes are experiencing economic exploitation, it can still be a disproportionate impact.” Arian Foster, now a professional football player, once said in an interview about his college days that “there were plenty of times where throughout the month I didn’t have enough for food. Our stadium had like 107,000 seats; 107,000 people buying a ticket to come watch us play. It’s tough just like knowing that, being aware of that.” Arian Foster even shared a time when he called a coach and told him that he had no money for food, so the coach only delivered him some tacos. Foster then recalled, “But then, the next day I walk up to the facility and I see my coach pull up in a brand new Lexus.”
While all college-athletes are negatively impacted by the amateurism system that the NCAA has in place, Black college athletes are severely more impacted. There is simply no reason why the NCAA, an entity that is categorized as non-profit, should be paying its administrations six or seven figure salaries. There is also no reason why college coaches are paid six or seven figure salaries as well, especially since they are coaching a sport that the NCAA deems to be “amateurish.”
IV. TOO COMPLICATED TO SOLVE v. POSSIBLE SOLUTIONS
NCAA regulations limit the amount of support Division I college-athletes can receive within their athletic scholarship to the “cost of attendance,” which is defined by each institution. This amount includes “the total cost of tuition and fees, room and board, books and supplies, transportation, and other expenses related to attendance at the institution.” The cost of attendance limitation has been the subject of numerous legal claims over the years. For example, in O’Bannon v. NCAA, a former UCLA basketball star brought antitrust claims related to his names, images and likeness in videogames. While the court held that the NCAA violated antitrust laws, the court also barred compensation to the student-athlete for his name, image, and likeness because “not paying student-athletes is precisely what makes them amateurs.”
The NCAA amateurism model needs to be reformed. College-athletes make too much money for their schools and the NCAA to be considered amateurs. While the NCAA has taken small steps over the years to compensate student-athletes better, such as increasing the amount of money a college-athlete can receive as part of his or her athletic scholarship and allowing universities to provide student-athletes with scholarships with up to five year terms instead of only one year terms, the athletes that still generate most of the money are not fairly compensated.
While the NCAA model as a whole may be too complicated to change overnight, one fair and simple solution to allow athletes to receive compensation is to allow them to make money out of their own name, image and likeness. Prohibiting athletes from doing so is silly. One famous example of an athlete getting in trouble for trying to sell his name, image and likeness, is Johnny Manziel when he got suspended half a game for selling his autograph. According to one study at the time, Manziel was worth more than $37 million to his university in free media exposure. Just let that sink in. Johnny Manziel generated $37 million for his school, but could not make a cent selling his signature to fans. Allowing athletes to profit out of their name, image and likeness is also fair because it allows the athletes that actually do generate money for the school to receive at least some compensation if they have the resources to do so. This also works because athletes can raise money on the side for themselves since they do not have time get an actual job due to their athletic and scholastic responsibilities.
As much as this solution may sound like a popularity contest for which college-athletes should get paid and which ones shouldn’t, that’s the nature of business in sports. Yes, there are other neutral solutions to compensate college-athletes, such as paying college-athletes work study amounts or creating a pot of money that is generated by ticket sales and then redistributing the money to each college athlete equally, but a profit-sharing method is just too infeasible because of how the NCAA is currently structured.
Although we live in a society where professional athletes make millions, economic injustice is an important issue, especially in this context. It may seem silly at first to argue that college-athletes should be paid just for playing a sport, but when you calculate how much money schools and the NCAA make, and then factor that with the negative impacts that playing a sport in college has on a college-athlete’s education, then it becomes clearer that college-athletes are being taken advantage of. Furthermore, many of these student-athletes are Black or other minorities. College only lasts four years. If education is how the NCAA wants to compensate student-athletes, then they should prioritize them as students first, athletes second. If playing the sport is still going to be the primary focus of college-athletes, then the NCAA should at least let them make any money that they are able to generate for themselves based on their name, image, and likeness. As of now, the NCAA acts like a cartel, and the college-athletes are paws.
 Maxwell Strachan, The NCAA Just Misses $1 Billion In Annual Revenue, HUFFINGTON POST (Mar. 11, 2015), http://www.huffingtonpost.com/2015/03/11/ncaa-revenue-2014_n_6851286.html.
 Steve Berkowitz, NCAA nearly topped $1 billion in revenue in 2014, USA TODAY (Mar. 11, 2015), http://www.usatoday.com/story/sports/college/2015/03/11/ncaa-financial-statement-2014-1-billion-revenue/70161386/.
 Greg Johnson, The NCAA Makes Billions and Student Athletes Get None of It, THE NATION (Apr. 9, 2014), https://www.thenation.com/article/ncaa-makes-billions-and-student-athletes-get-none-it/.
 Will Hobson and Steven Rich, Playing in the Red, WASHINGTON POST (Nov. 23, 2015) http://www.washingtonpost.com/sf/sports/wp/2015/11/23/running-up-the-bills/
 Smith College, Race and Sport, CLARK SCIENCE CENTER (Mar. 2012), http://www.science.smith.edu/exer_sci/ESS200/Raceh/Raceh.htm.
 Bob Hille, Study: Black Men Playing College Football, Basketball Lag in Graduation Rates (Mar. 15, 2016), http://www.sportingnews.com/ncaa-football/news/black-males-men-graduation-rates-college-football-basketball-degrees/1xlyoe81zucro1j0q2tvi81y0w.
 Adam Epstein & Paul M. Anderson, The Relationship Between a Collegiate Student-Athlete and the University: An Historical and Legal Perspective, 26 MARQ. SPORTS L. REV. 287, 291.
 Taylor v. Wake Forest University, 16 N.C. App. 121 (N.C. Ct. App. 1972)
 Id. at 121
 Lynn O'Shaughnessy, Do College Athletes Have Time to Be Students?, CBS NEWS (Feb 18, 2011), http://www.cbsnews.com/news/do-college-athletes-have-time-to-be-students/
 Kevin Trahan, Athletes are Getting Degrees, but does that actually mean anything? (Jul. 9, 2014), http://www.sbnation.com/college-football/2014/7/9/5885433/ncaa-trial-student-athletes-education
 Supra Note 7.
 Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3rd Cir. 1993).
 Supra Note 7.
 Ross v. Creighton Univ., 57 F.2d 410 (7th Cir. 1992).
 Id. at 416-17
 Hendricks v. Clemson Univ., 578 S.E.2d 711 (S.C. 2003).
 See State Comp. Ins. Fund v. Indus. Accident Comm'n, 314 P. 2d 288 (Colo. 1957).
 State Comp. Ins. Fund v. Indus. Accident Comm'n, 314 P. 2d 288 (Colo. 1957); see also Rensing v. Ind. St. Univ. Bd. of Tr.’s, 444 N.E. 2d 1170 (Ind. 1983); see also Coleman v. Western Mich. Univ., 336 N.W. 2d 224, 228 (Mich. Ct. App. 1983); see also Waldrep v. Texas Emp'rs Ins. Assn., 21 S.W.3d 692 (Tex. App. 2000).
 Univ. of Denver v. Nemeth, 257 P. 2d. 423 (Colo. 1953); See also Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (Colo. 1953); See also Van Horn v. Indus. Accident Comm'n, 219 Cal. App. 2d 457, 33 Cal. Rptr. 169 (Cal. Dist. Ct. App. 1963)
 Berger v. NCAA, 2016 U.S. Dist. LEXIS 18194, 18 (2016)
 Marc Edelman, Court Decision in Berger v. NCAA Creates Bad Case Law About College Athletes' Employment Status, FORBES (Dec. 23, 2016), https://www.forbes.com/sites/marcedelman/2016/12/23/court-decision-in-berger-v-ncaa-creates-bad-case-law-about-college-athletes-employment-status/#408012af1593.
 Patrick Hruby, Four Years a Student-Athlete: The Racial Injustice of Big-Time College Sports, VICE SPORTS (Apr. 4, 2016), https://sports.vice.com/en_us/article/four-years-a-student-athlete-the-racial-injustice-of-big-time-college-sports.
 Jim Harbaugh tops list of highest-paid college football coaches, SPORTS ILLUSTRATED (Oct. 26, 2016), http://www.si.com/college-football/2016/10/26/college-football-coaches-salaries-jim-harbaugh-nick-saban.
 Supra note 37.
 Darin Grantt, Arian Foster Admits Getting Money in College, (Sep. 20, 2013), http://profootballtalk.nbcsports.com/2013/09/20/arian-foster-admits-getting-money-in-college/.
 National Collegiate Athletic Association, 2015-2016 NCAA Division I Manual
 Supra note 7.
 O'Bannon v. NCAA, 802 F.3d 1049, 1053 (9th Cir. 2015).
 Peter Berkes, Johnny Manziel briefly suspended, ending NCAA autographs investigation (Aug. 28, 2013), http://www.sbnation.com/college-football/2013/8/28/4668634/johnny-manziel-suspended-texas-a-m
 Rick Reilly, Selling Johnny Football, ESPN (Feb. 26, 2013), http://www.espn.com/espn/story/_/id/8990966/selling-johnny-football