Why Would We Deliberately Choose to Create Inequality?

-- Posted by Neil H. Buchanan

In late 2011 and early 2012, I wrote a series of Dorf on Law posts (here, here, here, and here), and one Verdict column (here), discussing the argument that colleges should pay cash salaries to their athletes in money-generating sports.  Over the last two weeks, I have written three posts (here, here, and here) about how recent rules changes in professional and college football have been misunderstood, drawing an analogy (with the help of some readers) to the recent changes in the filibuster rules in the U.S. Senate.

Obviously, I have not followed through on my vow from two years ago to stop paying attention to football.  Today, my Verdict column is again devoted to the question of how college football players are compensated.  My motivation in writing that column was two-fold.

First, I felt the need to respond to a surprisingly large number of commentators who assert as fact that college football players are "paid nothing."  We hear this claim not just from the usual lunkheads, but from supposedly well-informed people like former Duke basketball star Jay Bilas, ESPN's estimable Bob Ley, and the editorial board of The New York Times.  (To be clear, some of the lunkheads are on my side, too.  Mike Golic, who comes across as a nice guy, but who cannot make a sustained argument that does not boil down to, "This makes me angry, and that's the way I feel," happens to oppose cash payments to college players.)

The second motivation, related to the first, is that I recently saw some up-to-date statistics on graduation rates for college athletes.  Looking at the numbers, what struck me was that the usual presumption that college athletes are all failing to graduate is spectacularly untrue.  Even my 2012 Verdict column implicitly assumed that essentially none of the scholarship athletes in major college football ends up graduating.  The reality is significantly better than that.  The numbers are in dispute, but even the pessimistic estimates for football graduation rates are in the 67% range.

I thus argue that it is a gross exaggeration to describe college football players as being "uncompensated."  They are receiving full-ride scholarships at a time when those are worth $20,000 - $60,000 per year, and the majority of the players are getting college degrees.  Some fraction of those degrees might be based on a fair number of non-rigorous courses, but our presumptions on that issue are also based more on supposition and exaggeration than reality.  In any event, it is simply "a true fact" that college football players are being compensated, and many of them get out of it the benefits that a college degree can confer on a person.

In the column, I try to be as clear as possible that my purpose is not to engage in either a cost-benefit analysis from the standpoint of the players (Are the benefits worth it, given how much damage football can do to the body and brain?), nor am I proposing a balancing test to determine whether college players receive a fair proportion of the revenues that college football generates.  My point was simply that players are definitely being compensated, and that their compensation has a dollar value that is quite high.  For someone to say that they receive "nothing" requires them to trivialize not just the education that players receive, but all of the other perks of being a college football player.

My further argument is that trivializing the value of a college degree reflects a surprising degree of anti-intellectualism.  Why are so many well-educated people willing to act as if a full-ride college scholarship is "nothing"?  They are essentially saying, "Meh!  Free college is fine, but there's real money involved here.  Don't give me your snobby stuff about the value of a college education!"  Once big dollars are involved, all of a sudden the only thing that matters is whether the big stars are getting a slice of the pie.

Moreover, it is only the big stars that we are talking about, when it comes to "winning" under a cash payment system.  Although some reformers have talked about creating a college equivalent of the NFL Players Association, i.e., a union, to represent players' interests, that is surely not going to happen.  (And, to be clear, the NFLPA is notoriously weak, because of the short playing careers of its members.)

The idea that rank-and-file players are going to be well served by a pay-for-play system is hard to take seriously.  And it is the rank-and-file players who are actually benefiting from the current system.  The top-flight stars are actually part of the reason that graduation rates are lower than they would otherwise be, because many of them leave college early for the pros, to make a few million dollars.  The guys who stay and graduate are the ones who figured out that the NFL is not in their future.  (And, as I noted in today's column, it turns out that any college attendance, not just a B.A., increases future earnings.)

My argument is thus based on two contestable assumptions.  First, I assume that a wage-labor system would almost immediately see the end of full-ride scholarships -- and even of "academic ineligibility" as a concept in college sports.  That is, I am asserting that we cannot reasonably expect that players will be paid both in full-ride scholarships and in wages.  (If I am wrong about that, there are still reasonable concerns about the effect that this would have on college campuses.)

Second, I am assuming that the net benefit paid to the majority of player-workers will be less than they are currently being paid.  A full-time worker making $10/hour, 40 hours per week and 50 weeks per year, has a gross income of $20,000.  What wage would universities end up paying, for part-year workers?  As it stands, big-time programs are willing to use all 85 of their allotted football scholarships, but there are plenty of would-be players who would willingly settle for less than that amount, especially if their myopia were being manipulated by receiving offers of immediate cash.

This is ultimately an empirical prediction, but I find myself returning to the conclusion that I discussed in one of my earlier posts.  A pay-for-play system will serve a small number of players very well but will end up harming the rest.  The economist Robert Frank popularized the concept of "winner-take-all markets," where the spoils of any particular economic activity are received by smaller and smaller groups of big winners, while others fight for scraps.  The current NCAA system, whatever its other flaws, prevents that from happening.

One might offer the simple, crude "free market" argument that the best players should be paid as much as the market can bear, and the rest do not deserve more than they can get.  That argument is incredibly weak, but even those who find it convincing should at least be clear that they are not concerned about the poor players who are "getting nothing" now.  Choosing to make the most vulnerable players worse off, by pretending that they have nothing to lose, is a cruel joke.