Is Paying Players Legal Without Paying All Players?

Every few months the debate about whether to pay players kicks into high gear, generally prompted by one of these three things: 1. a college coach gets a new record contract 2. a conference or school announces record athletic revenues or 3. a player does or says something that suggests he has no money or compares his status to indentured servitude or slavery. Yesteday we got two out of three in the same day. The SEC announced record revenue and Florida defensive back Jalen Tabor compared playing college football to “modern slavery.”

Now Tabor’s comparison is totally absurd — unless I missed the part where slaves were given the opportunity to get a free education and unlimited food while playing a game for twenty hours a week — but it set off the predictable debate that I feel like we’ve been having for the past ten years — should college players be paid?

The two sides of the debate — yes, they deserve to be paid and no, they’re already receiving scholarships — squared up in the boxing ring of public perception and had the same tired argument we’ve seen ad infinitum. One side argued yes and the other side argued no and that was that.

The problem is both sides are missing the real issues here. Namely: is it even legal to pay some players without paying every single scholarship athlete? And also, why do men’s basketball players and football players not have the ability to go pro at 18?

I talked about this yesterday on Outkick the Show so you can watch that discussion here. 

Outkick the Show

Posted by Clay Travis on Wednesday, January 20, 2016

But today I’m going to write about it in greater detail. 

Here we go:

1. Only football players and men’s basketball players have a market value in excess of their scholarship and cost of attendance payments. 

When you argue about whether to “pay the players,” what you’re really arguing is to pay the football and men’s basketball players. Essentially that’s a market argument, which I support. Namely, everyone has the right to sell their labor for as much as possible and right now we artificially constrain the labor value for football and men’s basketball players in college. They’re worth way more than they receive. If you’re a free markets guy, which I am, then the market should set compensation. 

There are several problems with a free market argument though. First, a college football or basketball team isn’t a for profit entity. It exists as a non-profit affiliated with a college or university. Football and men’s basketball programs make money, but the money these guys produce isn’t all vanishing off campus and being put into the hands or shareholders or ownership interests like with a for profit entity, most of it is just being redirected to other scholarship athletes, those whom the market would never support. 

Let me give you an example, a women’s soccer player or a men’s swimmer may well receive full rides to major colleges. But the market wouldn’t come anywhere near supporting their talent with a full scholarship. So the talents of those with market value — the football players and men’s basketball players — are subsidizing other scholarships for those without market-valued talent.  

The result is a rough socialism, those with superior talents are given less than they would otherwise receive, but many other athletes receive much more than they would otherwise receive. Effectively the football and men’s basketball players are paying a high tax on their talent to subsidize the less marketable. 

Why does this end up happening?

2. Title IX requires equal treatment of male and female athletes. 

That is, the scholarships for women’s athletics have to equal the scholarships for men’s athletics. No women’s college sports — with the exception of a couple of teams like UConn women’s basketball and Tennessee women’s basketball — make any money at all. The same is true of every other men’s sport other than football and men’s basketball. The market only values two college sports, football and men’s basketball. Every other college sport loses money. The insane market success of football, even at Kentucky football dwarfs basketball in revenue, allows colleges to fully fund athletic departments.  

So if you decide to give football and men’s basketball players an extra, let’s say, $30,000 a year on top of what they make now then legally you’d probably be required to do the same for every other athlete on scholarship, both male and female. That is, I don’t believe it’s legal under Title IX to treat some scholarship athletes differently than it is others. Everyone has to be treated equally. So if you believe players need to be paid then what you’re really arguing is that athletic departments will have to pay millions and millions of dollars to all athletes.

Put simply, most athletic departments can’t afford to do this. That’s because most athletic departments already lose money. And the few who do make money probably couldn’t afford to pay all athletes the same amount.

The problem here is simple — you have an artificial collegiate athletic market that treats revenue and non-revenue producing athletes the exact same. If this were a pure business then the only sports that would exist would be men’s basketball and football, because those are the only two that make money.   

So how did we end up in this position?

3. The NFL and the NBA are to blame for the market constraints on men’s basketball and football players.

An easy way to eliminate the “pay the players” argument is to give players options. Right now an 18 year old who wants to go pro in baseball, tennis, hockey, track, or golf can go pro. But he can’t go pro in football or basketball, at least not in this country for a substantial salary. You aren’t draft eligible until you’re 19 in the NBA and three years removed from high school in the NFL.

Why is that the case? Because the leagues have collectively bargained these restrictions with the player’s unions in both sports. Why do the leagues want these age limits? Because they can use college football and basketball as a free minor league. So while some people are yelling that colleges need to be paying athletes, the NCAA isn’t creating an artificial market where talented 18 year olds are required to wait to turn pro, the pro sports leagues are.

This, of course, leads to a black market of paid players, runners and street agents in major college sports. Like any industry where the market isn’t allowed to legally exist — drugs, prostitution, gambling — a shadowy underground economy rises up to fill the void. We know the top players have market value, but the market won’t allow us to unlock that value yet. So the black market steps into the picture. The NCAA wouldn’t need an enforcement arm at all if players just had the option to go pro. That’s because the vast majority of athletes aren’t talented enough to be illegally recruited.

The most amazing thing about these age restrictions is that no competitive pro sports league has arisen that will pay 18 year olds large salaries to play pro sports. Why isn’t there a football league, for instance, that pays top four and five star athletes several hundred thousand dollars a year without requiring them to go to school? (Let’s assume, by the way, that these top players aren’t being paid under the table in college. A consideration that no one arguing whether the players should be paid ever broaches). Because evidently businesses have decided that market is already being filled — fans would rather watch these players play for their college teams than play for minor league football or basketball teams. That makes sense when you think about it. Alabama and Ohio State have built in fan bases and large stadiums already, how do you replicate that with relatively anonymous 18 year olds straight out of high school? The business marketplace doesn’t feel that you can.

And even if those businesses existed, would you really counsel an 18 year old to go to these leagues and just play sports? The goal of a top athlete graduating high school isn’t to to make $400,00 by the time you’re 21, it’s to make $14 or $15 million at 21 years old. Don’t you think most players would pick the free ride for education and the potential of the NFL or the NBA over a guaranteed salary of $100,000 a year or so that might eventually lead to pro sports riches? I think so. Especially when you consider that top programs now spend incredible sums of money off the penumbra of college athletes. We don’t pay you for playing in college, but we do have incredible gyms and top trainers and medical staffs and waterfall jacuzzi tubs and smoothie bars beside the bench presses. The result? The University of Tennessee’s training facilities are infinitely nicer than the Tennessee Titans training facilities. 

But right now that choice is just a hypothetical — there’s no viable pro sports market for 18 year olds other than the existing collegiate framework.

And that’s the real issue here — an 18 year old star football or basketball player has no real choice to make, it’s college or college.   

4. So what’s the solution?

Eliminating age limits in the NFL and NBA would help. LeBron James, Kobe Bryant, Kevin Garnett and countless other 18 year olds have proven that going directly to the NBA is possible. In fact, players going directly to the NBA were more likely to succeed in the league than players who stayed four years in college. Talent matters.

And while there aren’t that many 18 or 19 year olds who the NFL would draft, there are certainly some. Leonard Fournette and Deshaun Watson are two good examples. Both true sophomore players would be first round draft picks if they could come out this year. Instead they’re forced to return to college, where they will risk their future earnings potential with every snap. That’s a moral hazard that I find impossible to reconcile. Football is such a violent sport that requiring anyone to play for three years before going pro is unacceptable to me.

After his freshman season Marcus Lattimore would have been a first round pick. Instead he stayed the required two more years in college, blew up both his knees, and never played in the NFL. I’m not saying that college football or basketball players should have to go pro, far from it, but I’m saying that not giving them that choice is morally wrong.

(Some of you are asking about allowing athletes to sell their name, image, and likeness, but this is a total mess because it would lead to direct payments and guarantees for top recruits. The schools with the most money or prestige would guarantee a four or five star that he’d make (insert dollar here) on autographs and endorsements while he played. The better solution if someone wants to sell their autographs and endorse products is just to let them go pro.) 

It’s also worth asking an interesting question, are football and men’s basketball players restricted from going pro partly because of their race? Not direct racism, but an example of structural racism at play, a long term lack of political power manifested in the world of collegiate sports? The NHL, Major League Baseball, tennis, and golf are all majority white sports and athletes can go pro at 18. The market works for them. Why doesn’t the market work for black 18 year olds? 

Here’s the part in the article where some people argue, “Well, they need to stay in school and get their education! What if they don’t make it as pros?” My answer to that is pretty simple, why do you care? We send tens of thousands of 18 year olds all over the world to carry guns and get shot at by strangers. Once you’re 18 we let all kids make choices. Some of those choices are good, some of those choices are bad. Sometimes leaving college without graduating makes sense — ask Mark Zuckerberg or Steve Jobs — sometimes it doesn’t. Some high school athletes going straight to the pros would become billionaires like LeBron James, most wouldn’t. Just like most kids dropping out of Harvard to found a company aren’t going to start Facebook and end up among the richest humans in world history. We shouldn’t be in the business of eliminating choices for those with talent, our entire country is founded on the exact opposite premise.

Plus, college is always there. You can always go back after your pro career is over. In fact, that probably would make more sense. Right now many of the top college athletes do the least amount of work possible to stay eligible for sports. They know the drill, they aren’t there to learn, they’re there to produce on the field.

Or else.

My point is pretty simple: Arguing whether or not players should be paid misses the larger point — all players should have the ability to go pro at 18 or 19 or whatever age they so desire. College sports aren’t designed to make players rich, they’re designed to prepare players for the future, to take the proverbial next step in life. If your talent already proves you’re ready for the next level, why should you be required to stay in college?

If you want to debate whether college players should be paid, that’s fine, but breaking down into the predictable yes or no camps trivializes an important issue and misses larger questions that actually deserve to be debated.  

Written by Clay Travis

OutKick founder, host and author. He's presently banned from appearing on both CNN and ESPN because he’s too honest for both.