Imagine Jerry Jones wrote an op-ed in The New York Times asking that the U.S. Congress make a law denying employment rights to the people who power the engine that drives the Dallas Cowboys’ revenue.
That star on the helmet is a glorious, cherished American institution. It’s what everyone is paying to see. And my boys can’t be bothered with all that workers’ compensation and collective bargaining mumbo jumbo. They’ve got to figure out a way to get out of the second weekend of the playoffs.
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Despite Jones’ gift for hyperbole, even he wouldn’t dream of doing this. He’d get torched. He’d be pilloried in every corner of the sports, government and financial spaces. Plus, we know he really liked writing checks to Ezekiel Elliott.
But that level of self-awareness doesn’t exist for the people who run major college sports. They have chosen over decades to build a multibillion-dollar business, and they still think they can appeal to the government and to an increasingly cynical public to hold on to a system that even they admit is broken.
On Thursday, The New York Times (The Athletic’s parent company) published an op-ed from Notre Dame president John Jenkins and athletic director Jack Swarbrick that cloaked itself in nostalgia while nakedly asking the U.S. government to codify a system that will allow schools and their executives and coaches to enjoy all the benefits of running a couple of major American sports with none of the pesky annoyances like paying market value for the talent or negotiating with the workforce. Jenkins and Swarbrick also command the NFL to create its own minor league instead of using the perfectly good — and incredibly popular — one they’ve created. They’d also like the NBA to abolish its age limit.
Congress, too, must act to resolve conflicting state regulations, clarify that our athletes are students, not employees, and give the N.C.A.A. the ability to enact and enforce rules for fair recruiting and compensation.
Professional athletics must play a role, too. Though baseball and hockey allow players to go pro right after high school, the N.B.A. age requirement for draft eligibility forces most of the highly talented players to attend one year of college. The N.F.L. offers no alternative to intercollegiate football until a player has been out of high school for at least three years. Both policies push talented young players to enroll in college regardless of whether they have any interest in the educational experience it offers.
To ensure that players arrive at college only after making an informed choice — and a real commitment to learning — we urge the N.F.L. to establish a minor league alternative for young players. Similarly, we hope that the N.B.A. and its Players’ Union, in accord with the 2018 Commission on College Basketball, use the upcoming contract negotiations to eliminate the “one and done” rule and allow 18-year-olds to proceed directly to the league.
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If you don’t want to read all that, here’s a short translation…
We don’t want to solve the issues we’ve created. So it would be super cool if all you guys solved our problems without us having to do any actual work. Thanks.
Instead of trying to find a way to pay revenue-sport athletes their market value as athletes, school administrators complain about the name, image and likeness system foisted upon them by state legislatures who grew tired of seeing schools break the Sherman Act in an effort to keep anyone from providing athletes anything beyond tuition, room and board. Swarbrick and Jenkins are correct that this did result in a sham system, but they conveniently leave out the reason.
The market wants to pay athletes for their value as athletes, and the schools — through the NCAA — forbid this. So the market, as it always does, has devised another way to provide that compensation.
Swarbrick and Jenkins want Congress to declare that athletes aren’t employees even though making athletes employees and then collectively bargaining with them would actually solve many of the problems that vex them so. Essentially, Swarbrick, Jenkins and their ilk would like someone else to fix the mess they themselves made. Neither Congress nor the NFL nor the NBA should let them off the hook. The people running the schools cashed the checks. They can, and should, figure it out on their own.
Notre Dame, which has its own TV contract with NBC for home football games, reported $136.7 million in football revenue in its 2021-22 school year submission to the U.S. Department of Education’s Equity in Athletics database. That is a far cry from the $544 million the NFL’s Washington Commanders made in fiscal 2021, but it’s still a massive business. It’s a business people such as Jenkins and Swarbrick have built over the course of decades, and they’ve done a wonderful job of growing it. Of course, it’s easier to do that when you don’t have to pay taxes and you’ve spent decades colluding with your competitors to keep a huge portion of your labor costs flat.
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NFL teams tried that collusion thing once, too. Like the college administrators of today, owners argued that free agency — which would raise their labor costs — would destroy the game. They lost in court, and their dire predictions have proven hilariously incorrect as the game has grown and players and owners have pocketed ever-increasing sums. Of course, the NFL owners always were required to pay taxes.
Despite their protests to the contrary, the likes of Jenkins and Swarbrick have built exactly the same business as the Maras or the Browns or the Halases. They’ll scream it’s different, but let’s examine the business model.
• Do they derive a significant revenue stream from selling tickets to sporting events?
• Do they derive an equally significant revenue stream from selling the broadcast rights to their games to television networks?
• Do they pay their coaches top dollar in order to win the most games?
• Do they compete to build the best rosters so they can win the most games?
The answer is yes for the pro leagues and for the revenue sports in college. It is the same business, whether the people running college sports choose to believe it or not.
This sort of logic test is why the NCAA and its member schools keep getting routed in federal court. Take away the nostalgia appeals aimed at convincing the gullible, and the foundation of the arguments always crumbles. No logical person believes the protests of a seven-figure-salaried athletic director who claims he needs intervention from the government and multiple pro sports leagues to continue running his business.
Now let’s tackle another chestnut that Jenkins and Swarbrick predictably included. If athletes in revenue sports are considered employees, schools will stop sponsoring sports that lose money. They claim (correctly) in the op-ed that many women’s sports didn’t exist before the advent of Title IX. Then they go right to the fearmongering. Those sports will be eliminated if we have to pay the quarterback what he’s worth on the open market, they warn.
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That is only true if people such as Jenkins and Swarbrick don’t care about those other sports as much as they claim. Let’s break down the numbers.
In the op-ed, Jenkins and Swarbrick write that Notre Dame sponsors 24 varsity sports. Notre Dame’s athletics website only lists 20, but that number could be stretched if indoor and outdoor track and swimming and diving are split into separate sports and the fencing team (listed as co-ed) is split into two teams. In that 2021-22 school year submission to the Department of Education, the school listed its total athletic department revenues as $215.3 million.
That database reaches back to the 2002-03 school year. That year, Notre Dame reported $89 million in athletic revenue. (About $141.5 million in today’s dollars.) Given the massive jump in revenue, we should assume Notre Dame recently added many of these sports because it could suddenly afford them. Shouldn’t we? Care to guess how many sports Notre Dame has added since 2003?
Zero.
According to a Notre Dame spokesperson, the Fighting Irish haven’t added a new varsity sport since women’s lacrosse in 1997. The school managed to field all those same teams when it was making significantly less than it does now, but Swarbrick and Jenkins want you to believe it suddenly won’t be able to afford them if some of the money goes to the football players bringing in the bulk of the revenue. They also conveniently omit that Notre Dame is due for athletics revenue surges when the expanded College Football Playoff begins in 2024, when Notre Dame makes its new media rights deal ahead of the 2025 season and when the CFP starts its new rights deal in 2026.
Despite this, they want you to believe that they’ll wipe out their non-revenue sports if football players get a bigger cut.
The truth? If any sport gets cut, it’s because the people running the school didn’t think the program was important enough to keep fielding a team. They’ve made it work with far less money. If they cut teams, it’s because they don’t care — not because they can’t afford it.
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This sort of logic frustrates university administrators accustomed to the public swallowing their talking points whole. But people are not as stupid as these administrators assume, and that’s why their arguments have struggled to gain traction in this new era.
For instance, Jenkins and Swarbrick spend part of their op-ed discussing the academic success of Notre Dame athletes. This is absolutely laudable, and they have every right to be proud. But don’t believe them when they suggest changing the compensation model will put a dent in that success. In fact, they are probably the two worst people involved in college sports to make this argument. And it’s not because of anything they’ve done wrong. It’s because of everything they’ve done right.
Unlike most schools that aspire to win football national titles, Notre Dame doesn’t sequester its players away from the general student body for as many hours a day as possible. Athletes live with non-athletes. The school doesn’t really have an easy major into which football players are clustered.
No one makes Notre Dame do this. Notre Dame officials choose to do this, even though they are competitively and financially incentivized to do otherwise. The result is — at least according to the former Irish players I’ve talked to about this topic — a far more enriching college experience for Notre Dame players than those at peer football programs. Jenkins and Swarbrick insinuate that this might change if a bunch of other people don’t solve their problems, but that simply isn’t true. Notre Dame chooses to do this now even though it probably shrinks the recruiting pool. Nothing would stop Notre Dame from encouraging the same environment in the future. The people in charge simply have to choose to do it that way.
As part of the talking points media blitz, Swarbrick offered another dire prediction to Sports Illustrated’s Ross Dellenger. It is here that it becomes clear the people in charge of college sports might finally be running out of excuses. Swarbrick suggested that if college sports continues down this road, it could mean the — wait for it — end of the NCAA.
“If we can’t start to get ourselves to where we can make rational decisions like those and enforce them, the future will be more than one athletic association. I can tell you that,” Swarbrick told Dellenger.
Swarbrick said this as if it’s a bad thing. Don’t threaten us with a good time unless you really mean it, Jack.
(Photo: Michael Reaves / Getty Images)
