A group of Pac-12 football players are threatening to boycott preseason camps and games unless the conference agrees to new policies, which were outlined in a statement on The Players’ Tribune on Sunday. In general, the players seek economic and health protections as well as measures to address racial injustice. Among specific requests, the players want the salaries of Pac-12 commissioner Larry Scott, coaches and administrators to be “drastically” reduced. Such a measure, the players contend, would help to save non-revenue sports from being cut.
This development sparks eight key legal questions:
1. Can Pac-12 schools legally cut the salaries of coaches and administrators?
It depends on how the coaches and administrators are employed.
A coach or athletic director who has an employment contract that guarantees a certain amount of pay and other fringe benefits must be provided them. A failure to honor a contract would constitute breach, opening the school up to litigation.
Schools generally have more flexibility with at-will employees, a status that would apply to some employed in an athletic department. Schools could reduce their pay, provided: the reduction doesn’t violate a collective bargaining agreement; there is adequate advance notice under the law; and the reductions aren’t discriminatory on the basis of race, ethnicity, sex or other classifications.
Aside from “can” it happen, it’s worth asking “should” it happen. Pay reductions can damage workplace morale and trigger resentment. Employees might become inclined to seek jobs elsewhere, which could destabilize athletic departments and teams.
The players appear mindful of those concerns. Their demand stipulates that reductions be “voluntary.” While the meaning of “voluntary” in the context of a threatened boycott could be debated, the players clearly expect that those impacted would have a say.
2. To address the players’ concerns, why don’t Pac-12 schools join hands and say, “Lets agree to cut our coaches’ high salaries”?
Because that would be illegal. First, as mentioned above, some salaries are guaranteed in employment contracts. Second, schools are competing businesses. Whenever competing businesses collude to restrain competition or to fix prices, they can run afoul of antitrust law. The NCAA and its members are well aware. In the 1990s, the NCAA adopted a rule that restricted the earnings of entry-level Division I coaches. Coaches sued and, in Law v. NCAA, were awarded $67 million in damages (the case eventually settled for $54.5 million).
3. Why would players demand “an end to lavish facility expenditures” that benefit them?
Because it goes to the central thesis of antitrust litigation brought by Shawne Alston, Justine Hartman, Martin Jenkins and other players. They maintain that universities aggressively compete to recruit athletes in ways that financially benefit others—such as schools jockeying to hire big-name coaches by offering to pay them high salaries—while those same universities agree (through NCAA rules) to not compete for athletes in ways that would financially benefit those athletes.
4. The players insist on receiving 50% of conference revenue and other financial benefits. Wouldn’t those measures convert them into university employees?
There is no simple answer to this question.
First, public and private universities are governed by different labor laws. Individual state laws would determine if players are employees at public universities, whereas the federal National Labor Relations Act (NLRA) regulates private universities. The Pac-12 consists of 10 public universities across six states—meaning six sets of state laws would apply—and two private universities (USC and Stanford), which are subject to the NLRA.
Different labor statutes and case precedent could lead to different outcomes. Athletes at some Pac-12 schools might be recognized as employees. Some of them could then vote to unionize and collectively bargain, if doing so is permitted under applicable state law. At other schools, employee-athletes might vote “no” on unionizing and choose the status of individual employees. Meanwhile, athletes at other Pac-12 schools would remain non-employee students.
Second, whether a college athlete qualifies as an employee would depend on a range of factors. It would not be determined solely by receipt of revenue. Factors include the extent to which the school exercises control over the details of the players, the method of payments to athletes and whether the athletes and schools believe they are creating an employment relationship.
This is a complicated topic, and one that remains unsettled after the National Labor Relations Board declined in 2015 to exercise jurisdiction over a petition brought by Northwestern University football. However, as a general point, if college athletes started to receive pay that reflects their labor, they would gain a more compelling legal argument that they are employees.
5. Could the Pac-12 legally turn over 50% of revenue to the players?
Such a measure would clearly violate NCAA amateurism rules but, with proper contracting, would nonetheless be deemed legal. (Remember, NCAA rules aren’t the law.) In general, a conference can pay who it wants and for what it wants.
That said, Pac-12 and its members should be mindful of Title IX compliance. Any sharing of revenue would need to be conducted without member institutions engaging in unequal treatment of male and female athletes.
Further, it’s possible that companies that do business with the Pac-12 would express concerns that their contracts for TV broadcasts, apparel and merchandise do not address payment to players. If payments ultimately go to the players, the companies might demand that the players participate in the contracting.
6. If the players boycott, what could Pac-12 schools do in response?
The difference between “could” and “should” is important to stress in answering this question.
The schools could terminate the players’ athletic scholarships on grounds that the players refuse to participate in athletics. This would make it difficult for some athletes to remain in school—between tuition and room and board, Pac-12 schools can cost more than $70,000 a year.
Schools could pursue other draconian measures, such as suspending or even expelling the students on grounds that they have violated university honor codes or university conduct policies. For instance, chapter 102.13 of UCLA’s student conduct code forbids “obstruction or disruption of teaching, research, administration, disciplinary procedures, or other university activities.” The term “university activities” could conceivably be construed to include athletics.
Of course, any hostile responses by Pac-12 schools might only secure pyrrhic victories. The schools would lose their athletes, be portrayed as insensitive (if not worse) on race and social issues and undermine their own recruitment efforts. In addition, students at public Pac-12 schools could object to any discipline on grounds that they are merely engaging in free speech as protected by the First Amendment.
Rather than allowing a boycott to happen, Pac-12 schools are more likely to try to find common ground with the athletes and resolve the matter.
7. If the Pac-12 accepts the players’ COVID-19 and other health demands, would other conferences be inclined to take the same steps?
Possibly. As detailed on Sportico, potential university liability for athletes who contract the virus is unsettled. The risk of contraction is not a risk inherent to a sport and could fall outside of traditional “assumption of risk” arguments. Also, the enforceability of liability waivers varies by state, with some states being hostile to waivers. Particularly given that the long-term effects of the virus on survivors remain unknown, there is reason to believe sports-related COVID-19 litigation awaits.
To the extent the Pac-12 rescinds the use of waivers and provides additional safety measures, the conference would be setting an industry standard that other conferences—and their schools—might be judged by if they are sued by athletes.
8. Can the NCAA stop this?
No, not in a direct sense. Colleges and conferences decide their own policies. The NCAA doesn’t “run” them. Likewise, the NCAA can’t force college students, including athletes, to act against their will. While it’s clearly influential, the NCAA isn’t more than a private, not-for-profit entity based in Indiana. Its power hinges on the willingness of its member institutions and athletes to follow it. The NCAA could conceivably move to expel Pac-12 schools and oust boycotting athletes. But if it does, what would happen next? The NCAA probably doesn’t want to find out.
