Commentary

Paying players might create havoc

Originally Published: July 15, 2011
By Ivan Maisel | ESPN.com

It used to be that when the subject of paying student-athletes arose, the defenders of the status quo leapt onto their high horses. They shuddered to think of the calamity that would occur if the walls of amateurism were breached. They told the squeamish to avert their eyes. They turned the heads of children. Amateurism must be defended. Our American Way of Life stood in the balance.

[+] EnlargeRussell Wilson
Douglas Jones/US PresswireRussell Wilson is returning to the college football field after playing minor league baseball.

That is so 20th century.

Classic amateurism is just about confined to golf these days. The NCAA long ago allowed student-athletes to turn professional in one sport while retaining their eligibility in another. In recent years, the NCAA has established funds to provide basic necessities for student-athletes in need. So what if the NCAA controls the money? The NCAA still hands it out.

The point is that rules evolve. One era's professional is today's Wisconsin quarterback Russell Wilson, a minor leaguer in the Colorado Rockies' farm system. So allow your mind to drift. Let the rules continue to evolve. Think what might happen if the NCAA allowed its member institutions to pay its student-athletes.

Yes, we know. They already pay them as much as $250,000 in tuition, room, board, books, fees, medical care, physical training, tutoring and trinkets that can be traded for tattoos.

But move beyond that. Pay the players who fill those six-figure stadiums. Pay the athletes who promote the brand of the alma mater. Pay the female athletes, too, because who needs a lawsuit? Work out your budget. Feel magnanimous about putting more money in the pockets of student-athletes.

Now, go hire an attorney.

"If they are paid more than the cost of attendance," Matt Mitten, the director of the National Sports Law Institute at Marquette Law School, said of student-athletes, "they would likely be characterized as employees. And that has a number of implications."

If they are employees, some or all of the athletic scholarships they receive might be taxed as income.

If they are employees, they might unionize.

If they are employees, the university, as the employer, might be responsible for any tort -- a wrongful act resulting in an injury worthy of compensation -- committed by them.

"You've got a player that you know is particularly aggressive, and, in the course of the basketball game, he punches an opposing player in the face," Mitten said. "You don't see a lot of these suits. But they have the potential to be there. … Suppose the player suffers a real serious injury. He starts looking around for a deep pocket. They say, 'Well, let's sue not only the opposing player who injured me but his university.'"

If athletes are employees, they might jeopardize the case history of courts showing deference to athletics as part of a university's educational mission.

[+] Enlargetackle
Rick Dole/Getty ImagesIf players were considered paid employees, it would create a number of legal and tax-related questions.

"Even though the universities getting together and saying, 'We're not going to give you a nickel more than tuition, books, room and board,' looks a lot like price-fixing," Mitten said, "the courts have said, 'Well, the NCAA and the schools have a very strong interest in being the guardian of amateurism and promoting competitive balance.'"

Judges might change their attitude. So, too, might the Internal Revenue Service. If athletes are employees, the university's educational mission might be called to account for tax purposes, too. The profits generated by the athletic department might be classified as unrelated business income and subject to taxation at corporate rates.

At the very least, universities would be hiring accountants at the rate that football coaches hire quality control assistants. Unlike the latter, accountants are not cheap.

Once you pull one thread, the entire sweater unravels. If colleges are making profits, Mitten said, "It would have implications as to whether the sponsorships [are] something they could take as a tax deduction."

That includes not only the sponsors who pay for bowl games but also the sponsors who pay for ads on giant video screens and on stadium facades.

If student-athletes are employees, they would be eligible for worker's compensation for their injuries unless a state passed legislation exempting student-athletes from coverage.

The most prominent case that establishes that a student-athlete is not an employee is Waldrep v. Texas Employers Insurance Association. Kent Waldrep, a TCU running back who became paralyzed from the chest down in a 1974 game against Alabama, filed for worker's compensation in Texas in 1991. A compensation commission ruled in favor of Waldrep, only to have that ruling overturned by a district court jury.

In affirming the jury's decision, a state appeals court listed all the ways in which Waldrep did not qualify as a university employee. Among them: the letter of intent and financial aid paperwork signed by Waldrep and TCU did not constitute an employment contract. Financial aid did not represent income. TCU did not pay a salary or promise one; did not withhold taxes; and did not tell Waldrep he was or would become an employee.

Those are just some of the issues with which NCAA members will tangle if scholarships evolve into salaries. All of them could be worked out. One or more of them could wreak havoc on college sports as we know them.

If there's an athletic director or university president out there who's looking to open the door to turning student-athletes into employees, he or she is being quiet about it. Most believe that student-athletes are receiving compensation. They see an athletic grant-in-aid as different from a professional salary. So do Congress and the courts -- so far.

Ivan Maisel is a senior writer for ESPN.com and hosts the ESPNU College Football podcast. Send your questions and comments to him at Ivan.Maisel@ESPN.com.

Ivan Maisel | email

Senior Writer, ESPN.com