(03-02-2023 04:54 PM)MattBrownEP Wrote:  A few quick thoughts on this question...which, as you can imagine, I've been studying a LOT and will probably write about multiple times again over the next several months.


1) I do not think anybody can say, with true certainty, exactly which athletes will be deemed 'employees', if and when that time actually comes. The Johnson plaintiff class does not include every single college athlete, and since the 'test' that the courts are using here is less about revenue and more about control, I know DII and DIII leaders are consulting with lawyers about potential pathways for lower division sports to become compliant with reclassification without employee status. The NCAA can't say this in public yet, but deep down, what they are really hoping to prevent is an employee classification for *everybody*. Most folks in the industry have quietly come to terms with a future where at least SOME CFB and BB players will be defined as employees. The legal (and political) battle will be over who is classified as some.

2) Asking "will there be a subsidy" is actually a great question. Not everybody here may be aware of this, but almost every other country finances elite athlete development with taxpayer dollars. Most countries have a Minister of Sport division in their central government, and that money is used to recruit and train Olympic caliber athletes. In some countries, like Germany, the armed forces help with this process as well.

If mass development of Olympic sport athletes is no longer financially possible in the college model, it's very much a good question if the government will step in to help. One idea that some academics have suggested is to help pay for these programs via a nationwide tax on sports betting. Others have proposed giving appropriations to sport-specific federations. I've heard our armed forces paying for all of the scholarships (in exchange for service commitments) as a possibility as well.

I understand the reflexive reluctance to have the government be involved. But if we want to continue to kick everyone's butt in the Olympics, and for legal or political purposes, can't keep the current show going...something is going to have to change. Nobody else funds elite athletic development 100% from private funds....or at least, nobody who wins anything does.

3) As others have stated, Title IX is unlikely to be a major consideration here. Title IX doesn't give you permission to break labor law, so an obligation to pay employees will trump Title IX compliance. As the sport opportunities become legally professionalized, Title IX will (likely) no longer apply. The equity questions will then fall under Title XII, which has different reporting requirements (and penalties).

I've never heard of Title XII. Are you sure you didn't mean Title VII?

(03-02-2023 06:15 PM)ken d Wrote:  I've never heard of Title XII. Are you sure you didn't mean Title VII?

Yeah, that's exactly what I meant. Bad typo! Title SEVEN lol

(03-02-2023 04:06 PM)DFW HOYA Wrote:  

(03-02-2023 09:38 AM)ken d Wrote:  If there are no scholarships, effectively there is no Title IX.

Title IX, though grossly misused, is not about scholarships. If so, Division III would be immune to it, and it's not.

It is not exclusively about scholarships, but equity in awarding athletic scholarships is a major part of Title IX compliance tests. The act also pertains to discrimination in athletics participation, program budgets, expenditures and coaching salaries by gender.

(03-02-2023 10:35 AM)Frank the Tank Wrote:  

(03-02-2023 10:24 AM)mturn017 Wrote:  

(03-02-2023 10:15 AM)Frank the Tank Wrote:  

(03-02-2023 09:38 AM)ken d Wrote:  In the absence of legislative relief, I could envision all athletic scholarships being eliminated, replaced by wages collectively bargained by sport rather than by athletic departments. If there are no scholarships, effectively there is no Title IX. In that environment, schools would likely still have women's sports, but their wages would depend on the revenues for each sport (either external revenues or institutional subsidies). Wages would have to be the same for both men's and women's soccer, but not the same for soccer vs rowing or tennis.

Title VII would still apply even if Title IX doesn't going forward. That prohibits employment discrimination based on sex and other protected class characteristics. Now, to that point, the potential non-compliance with Title VII and/or Title IX if there's a pure free market system in college sports is probably the strongest point for colleges to get some type of legislative relief. I don't think colleges are getting anywhere with just an argument that players shouldn't be paid because athletic departments would suffer - that's simply not going to get any sympathy from people on Capitol Hill. However, there is a legitimate argument from the colleges that complying with unrestricted pay-for-play on the one hand could cause them to be out of compliance with Title VII and/or Title IX on the other hand, which would be an inequitable "double jeopardy" situation. Essentially, the colleges would be out of compliance with the law no matter which course that they choose. So, it would be appropriate for the government to step in to resolve that double jeopardy issue. That's how I'd approach it if I were running the colleges here (as opposed to trying to use emotional arguments in pretending that amateurism still exists).

By the same token, I don't think athletic scholarships would be eliminated. It doesn't make sense from a financial perspective. Remember that an athletic scholarship of $X is "cheaper" than a salary of $X for everyone involved - boosters that fund scholarships are able to deduct donations from their taxes, schools can use those tax-advantaged funds along with it being an in-house expense transfer between university departments as opposed to a true out-of-pocket expense, and the athletes get that scholarship benefit tax-free. The scholarship still makes too much sense as a base benefit because it's essentially an item that's valued at the higher retail price but its true cost is a lower wholesale amount. The scholarship just can't be the *only* compensation if you want to continue to participate in high-level athletics anymore.

Not if those athletes are drawing a salary. Those tax deductions are only for "amateur athletes"

No - not at all. There are lots of students that are simultaneously employees of their university and recipients of a scholarship. In fact, many financial aid packages are specifically tied to a work-study program where the student is an employee for the university. This is no different for athletes - the scholarship that they receive to attend school is one item and then the salary and wages that they receive for playing their sport is another item. That's no different than how work-study programs and a lot of graduate student programs (where their tuition is paid for via a scholarship and then also get an employment stipend for teaching classes as a Teaching Assistant) work. The educational scholarship piece is always tax-deductible.

Thanks Frank. I’ve been wondering about the TA comparison for a while. How would athletes be any different?