Dear Mr. Baker,

It’s increasingly likely that the concept of “amateurism,” as it relates to college athletes, will be rendered extinct under your watch. The transformation has already started, and it’s not going to stop.

Do you want to be remembered for leading the evolution or trying to delay it? 

Your new employer, the NCAA, suffered historic defeats in Ed O’Bannon’s and Shawne Alston’s cases. The former concerned NCAA rules that prevented college athletes from enjoying a longstanding American right to profit from their identity. The latter involved NCAA rules that barred colleges from reimbursing college athletes for academic-related expenses, even while the NCAA’s mission statement touts “prioritizing education.” Judges viewed the NCAA’s arguments as almost silly, especially when everyone around the athletes—the coaches, athletic staff, TV networks, stadium construction companies, etc.—profit handsomely.

Then states adopted NIL statutes, making it illegal for the NCAA, conferences and colleges to interfere with athletes’ ability to make money off their name, image and likeness. Only as those state laws were set to go into effect did the NCAA reluctantly permit NIL. 

But NIL and academic-related costs are only the tip of the iceberg. More massive collisions are near.

Last week, a three-judge panel on the U.S. Court Appeals for the Third Circuit reviewed Johnson v. NCAA and seemed persuaded that college athletes are employees under the Fair Labor Standards Act. If they are employees, colleges would need to pay them at least minimum wage, just like their work-study classmates who work at athletic events and are sometimes on scholarship, too. It also means the NCAA might owe massive monetary damages for college athletes who should have been paid as FLSA employees but weren’t. 

Out in California, Judge Claudia Wilken—the same trial judge who ruled against the NCAA in O’Bannon and Alston—has already denied the NCAA’s bid to dismiss House v. NCAA (also called In Re College Athlete NIL Litigation). House centers on what college athletes could have made in NIL before the NCAA allowed it, as well as broadcast revenue. Like Johnson, House could end up costing the NCAA and its member colleges untold millions.

It’s not as if there are certain kinds of judges who favor amateurism. In Alston, all 13 judges or justices who reviewed the case—including those regarded as conservative and liberal—sided against the NCAA. 0 for 13. In Johnson, the three appellate judges—who were appointed by Presidents Clinton, Obama and Trump— all seemed to be against the NCAA. In an era where the courts are often divided and partisan, they seem to rally around the conclusion that amateurism is bad.

But it’s not just the courts. At least some at the NLRB appear convinced that college athletes are employees under the National Labor Relations Act and that the NCAA is a joint employer, a finding that would allow college athletes to unionize, negotiate collective bargaining agreements and sign employment contracts. Even the Federal Trade Commission should be worrisome for you, as a proposed ban on noncompetes could pose ramifications in a world where college athletes are employees.

Your options for playing defense aren’t promising. You could argue, as an NCAA attorney asserted at the Third Circuit last week, that recognizing college athletes as employees might prevent colleges from complying with Title IX and other laws. None of the Clinton-, Obama- or Trump-appointed judges seemed persuaded. That’s not surprising since arguing, in effect, “in order to comply with employment law, we’d need to violate other laws” is an acknowledgment that the underlying system isn’t lawful. Businesses—and the NCAA is a business, as are colleges and conferences—must comply with all laws; when they can’t, they need to figure out a new game plan.

Another argument that doesn’t have much traction is that some colleges won’t be able to afford to pay college athletes. That assertion is probably true at some schools, but it’s also not a convincing legal argument. If a business can’t be profitable if it must pay the labor, then it probably shouldn’t be in business.

You might also, like your predecessor, try to persuade Congress to pass a federal college sports law that regulates NIL, prevents college athletes from being recognized employees and grants you an antitrust exemption. In a world where genies granted wishes, that kind of federal law seems realistic. In our world, it does not. Neither political party supports that type of legislation, and both have other priorities. A federal law of that kind would also risk unintended consequences, such as how a national NIL standard interacts with states’ rights of publicity and how broadly an antitrust exemption ought to be construed.

But you can turn the tide. Remember, you’re not a former athletic administrator or university president. You aren’t a product of a system that incentivizes caution, breeds bureaucracy and rewards process for the sake of process. You’re a former governor known for finding solutions.

The first step is to figure out why the NCAA has been losing in court. The answer might be simple: Judges don’t like blanket and inflexible prohibitions on player compensation. In O’Bannon, the NCAA set the value players could receive in NIL at $0. In Alston, the NCAA prohibited colleges from reimbursing athletes for education related expenses. These rules are strict, absolute and unlawful under antitrust law—an area of law that prioritizes being reasonable. 

The NCAA can regulate NIL to credibly distinguish it from pay-for-play. The NCAA might then be sued under antitrust law, with the idea that the NCAA and its members have conspired to unreasonably restrain economic competition, or under state NIL statutes, but that’s OK. Empirical evidence shows that most antitrust lawsuits fail, especially when the rule at issue is not “all or nothing” but instead flexible and adaptive. The NCAA is probably compliant with state NIL statutes, too, so long as restrictions on NIL do not block NIL.

Second, while the NCAA’s instinct has long been to litigate until the end, that approach seems unwise in Johnson and House. To be sure, the drive to litigate is to prevent courts from changing long standing amateurism rules. But the financial ramifications of losing either Johnson or House would be astronomical, as the NCAA and its members would not only need to change rules but pay current and former athletes for past and ongoing damages. You might, as pro leagues are more inclined to do, explore the possibility of settlements.

Third, it’s time to seriously consider college athletes as employees. Once again, the NCAA doesn’t have to proceed in an “all or nothing” manner. There are methods that could recognize employment at some schools but not others, and the distinction would be grounded in data and empirically defensible in court. 

I suggest one model. The University of Illinois Law Review has accepted for publication “The Collegiate Employee-Athlete,” written by Marc Edelman, John Holden and me. Our article urges that three factors be applied to ascertain the “dividing point” between employee-athletes and true student-athletes: Whether a team of college athletes provides meaningful revenues to their school (“Meaningful Revenue Test”), whether the athletes’ athletic participation substantially enhances their colleges’ goodwill in a manner beyond team-specific, quantifiable revenues (“Public Relations Goodwill Test”), and whether the proceeds derived from a college sports team are passed along to their team’s coaches and administrators in the form of above-market salaries (“Windfall Coaching Salaries Test”). Each of these three factors is consistent with traditional labor and employment law tests for employee status, and each incorporates the unique nature of college sports.

Our proposal is merely one idea. There are others. No matter the model picked, schools would still need to follow Title IX and other laws. There might be adverse tax and other consequences. Employee recognition might lead to unionization and collective bargaining. 

But if the NCAA instead waits for a court to declare college athletes as employees or waits for the NLRB to find that the NCAA is a joint employer of college athletes, the ruling could apply across the board, all at once, and in ways that you won’t control. Instead of leading the way, you and the NCAA would be at the mercy of the government.

Don’t wait.