Athletes seek ‘seat at table’ in new college sports model

• Dan Murphy, ESPN Staff WriterSep 27, 2023, 08:14 AM ET

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  • Covers the Big Ten
  • Joined ESPN.com in 2014
  • Graduate of the University of Notre Dame

UCF quarterback John Rhys Plumlee did not tune in last week to watch lawyers in a California courtroom debate the value of a college athlete’s broadcast publicity rights. Plumlee was busy rehabbing his leg injury and helping his team prepare for its Big 12 debut rather than keeping tabs on the latest antitrust case threatening the NCAA’s business model.

Plumlee also missed the ninth congressional hearing on name, image and likeness laws last week. He didn’t have time to read about the Dartmouth men’s basketball team taking steps to form a union, or a Michigan university board member’s op-ed in The New York Times echoing football coach Jim Harbaugh’s belief that it was time to start sharing revenue with players.

Few, if any, college athletes have the time to keep up with all the current legal threats to the business they help drive. Nonetheless, the burgeoning sense that amateurism in college sports is wobbling on its last leg has seeped into Plumlee’s busy world.

“I keep my head below water a ton, but the more I look around, man, the NCAA has made a lot of money off of college athletes for years,” Plumlee told ESPN. “I’m not trying to take a shot at them, but the game is changing. I think guys should be compensated for it.”

Plumlee, a fifth-year senior, is one of a handful of college athletes who have signed up to be ambassadors for Athletes.org (AO), a new company aiming to inform and organize college athletes to help them today and to prepare for a future when they might share more fully in the billions of dollars they help generate.

The walls are closing in on the current model of college sports. Lawyers, politicians, industry professionals and now a growing number of the athletes themselves are chipping away at the last vestiges of amateurism. Many college administrators who control the industry’s substantial purse strings aren’t yet ready to view athletes as professionals, but they do acknowledge that major changes are needed to find a more sustainable and stable way of doing business. Some believe that change needs to come in a hurry.

“We need to come up with something in the next nine to 12 months,” said Maryland athletic director Damon Evans, a member of the NCAA’s committee tasked with transforming Division I sports. “I believe we’ve got to start making some things happen where people know we’re serious about understanding we need to change in a way that may look very different than the old model. We’ve been out of the amateurism model. We’re in the middle right now. We need to figure out exactly the right spot we need to be in.”

If the college sports industry is going to find stability, it likely will have to start providing more to athletes in its top-earning sports. And if athletes eventually are going to share TV revenue or negotiate for other collectively bargained improvements, they’ll need to be organized, informed and unified in ways that have long proved difficult to establish amid short college careers and jam-packed schedules.

Plumlee and some of his peers say they know they’ll need help getting there, which is why he’s turning to AO — one of several groups competing to represent athletes’ voices in the pending and inevitable reshaping of college sports.

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Plumlee was a freshman at Ole Miss in 2019 when he first met AO co-founder Jim Cavale. At the time, Cavale was speaking to the Rebels football team about how they should get ready for a monumental shift that he believed soon would allow them to start making money from endorsement deals. Two years later, when the NCAA adopted its NIL rules, Cavale’s company INFLCR emerged as one of the industry leaders in helping schools and athletes capitalize on their new capabilities.

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Cavale announced this past summer that he was leaving INFLCR to dive full time into a plan he had started hatching months earlier. He and AO co-founder Brandon Copeland, a recently retired NFL linebacker who was active in the NFL Players Association and taught classes at Penn during his pro career, met at the Super Bowl in February. Together, they started building the framework of a company that they say is best suited to gather and then empower athletes.

As part of an NIL deal he’s signed with the company, Plumlee will promote AO, explaining its mission to his peers and encouraging them to join the organization. He’ll be joined initially by a trio of basketball players also serving as ambassadors: UNC’s Armando Bacot, Kansas star forward Hunter Dickinson and Anna Camden, who transferred from Penn State to Richmond this year.

“It’s a seat at the table. That’s the main thing,” Bacot said. “To come together in a more organized way is what’s huge about AO.”

AO’s nonprofit arm provides a free set of tools for athletes to navigate their current lives, including a service that rates and vets NIL agents, pro bono advice from lawyers, medical second opinions from sports physicians and financial education courses. They also have a for-profit side — Athletes Inc. — that plans to make money by selling group licensing deals with the athletes who sign up to join the organization, a setup similar to the NFLPA’s marketing and licensing arm known as NFL Players Inc.

“The vision starts with getting athletes into AO,” Cavale said. “… Ultimately we want to get to the collective bargaining stage. We do have to build a business that is successful. That’s how we create jobs for people working on this effort. That’s how we provide free membership for our athletes, and it’s how we can generate the fairest group licensing deals for our athletes.”

Their plan has attracted startup funding from two venture capital firms. Cavale declined to say how much AO has raised since its launch in August.

While some college administrators believe that athletes can have a voice within the NCAA’s current power structure, Cavale and the athletes who have joined AO thus far say that independence is essential.

“We are in the era of empowering athletes. Having a separate entity empowers athletes,” Camden said. “We don’t need the NCAA to form us into groups to talk about things that they might never listen to.”

AO isn’t alone in trying to create that separate voice. Other organizations are also working to attract a critical mass of athletes needed to obtain negotiating power through different means.

The Collective Association, for example, is a group of booster collectives trying to pool their knowledge and influence to raise the concerns of athletes in the ongoing debate about federal legislation shaping the future of college sports. They’re also trying to change the perception of an increasingly professionalized cottage industry. These aren’t the envelopes-of-cash, Buddy Garrity-stereotype boosters from a past generation. Most of the collectives in the TCA have staffs filled by agents, former athletic department employees and sports industry executives.

Collectives are currently the main driver of NIL dollars in major college sports and have played a significant role in morphing the endorsement market into one that looks more like “an outsource payroll,” according to one collective operator. They say stability in college sports will come only with revenue sharing, and they see a future in which they can help athletes negotiate for a share of the massive broadcast-rights packages through NIL deals without making athletes into employees of their schools. The deals they strike for athletes now are a “junior varsity version” of future broadcast negotiations, according to Rob Sine from Penn State’s Happy Valley United, a TCA member.

Sine says the biggest advantage his group has in this competition is that it already has business relationships with thousands of college athletes.

“It’s great that other organizations care,” he said, “but they’re trying to climb the mountain, and we’re halfway up it or a quarter of the way already up it with our experience.”

Elsewhere, the College Football Players Association also has been working for the past two-plus years to grow membership through a grassroots campaign that looks more like traditional labor movement organizing. Its founder, Jason Stahl, and others with CFBPA believe the path to collective bargaining will look more like a fight than an amicable partnership. He says they are concerned that groups like AO and the TCA are too cozy with current college sports power brokers to effectively represent players in a fight for more resources.

“You have to choose a side. You have to say, ‘I’m with the players always,'” Stahl said. “It is inherently an adversarial relationship. Legally speaking, it needs to be an adversarial relationship.”

The path from NIL deals to collectively bargaining for TV money, if that ever arrives, is uncertain. The possible routes through NIL deals, unionization or some other solution form a muddled set of overlapping flow charts riddled with variables, lawyers and politics. Cavale and Copeland say they’re not gearing up to blaze any particular trail so much as they are trying to put pieces in place to be useful when others in college sports reach the destination.

ACC commissioner Jim Phillips says he does not see a future in which any of his peers are interested in treating college athletes as employees. AP Photo/Nell Redmond, File

Most administrators in college sports are not ready to publicly concede that negotiating with players is inevitable. Last week the Lead1 Association, a trade group for FBS-level athletic directors, discussed revenue sharing and bargaining with athletes at their annual meetings in Washington, D.C. Pitt athletic director Heather Lyke, the group’s current board chair, said the directors in those conversations were open-minded about finding a more sustainable future for college sports but couldn’t envision bargaining with college athletes.

Lyke said the prospect of sharing revenue with top-earning sports raises difficult questions about whether departments like hers could follow Title IX regulations and continue to fully fund all the sports they sponsor. Moreover, she said she and her colleagues view themselves as advocates for athletes, not the opposition.

“I don’t see myself opposite my student-athletes. I’m looking out for their best interest every single day. People don’t want to believe that, but that’s why we’re here,” Lyke said. “… I don’t see how athletes could collectively bargain and with whom. I just don’t see the structure.”

How and when might the structure of a new model for the top-earning collegiate sports come to fruition? For simplicity’s sake, four main catalysts could prompt major changes: the courts, pressure from players, Congress and a proactive school or conference seeking a competitive edge.

The courts

The NCAA is currently facing legal challenges to its stance on paying athletes based on three different laws: the Fair Labor Standards Act (Johnson v. NCAA), the National Labor Relations Act (NLRB v. USC, Pac-12 and NCAA) and the Sherman Antitrust Act (House v. NCAA).

A loss in either of the first two cases would turn at least some athletes into employees of their schools and/or conferences. The House case, on the other hand, is challenging the NCAA’s rules that prohibit schools from getting directly involved in sharing broadcast money with athletes. The NCAA’s track record in court has been poor in the past decade, and the rhetoric coming from judges overseeing these cases during preliminary hearings hasn’t been very sympathetic to the association’s arguments.

Some longtime athlete advocates, such as National College Players Association founder Ramogi Huma, believe that a court mandate is the only way that colleges will ever be willing to bargain with athletes. Huma organized an attempt to unionize Northwestern football players nearly a decade ago and filed the complaint that has led to the current NLRB case on the West Coast.

All three cases could take years before they are resolved, but others believe the pressure to prevent full-blown employee status (a Rubicon that most college sports leaders say they are unwilling to cross) might be the athletes’ best leverage in trying to spur a bargaining conversation.

Player pressure

The ultimate leverage for any group trying to get more from the administrators of their industry is a labor strike. The limited window of opportunity that college athletes have on the field and the many other demands on their time have always made a strike a far-fetched prospect.

While leaders of some groups like the CFBPA don’t rule out the future prospect of a strike, they acknowledge there is a long road of organizing that needs to be completed before that’s a realistic possibility. Stahl, CFBPA’s founder, said that a full strike isn’t the only tool that athletes can use to compel change. He said he believes public pressure from players and a continued show of a willingness to organize on the grassroots level is the most important lever to pull in the multistep process to collective bargaining.

“I think it requires the NCAA and the powers-that-be in college athletics to make some real tectonic shifts that I don’t see them making absent pressure from the players,” Stahl said.

Congress

In the eyes of most athletic directors and conference commissioners, a stable future — especially one that helps them avoid bargaining with athletes — will require help from federal lawmakers. It’s far from certain that Congress will act on any of the current bills that have been proposed on Capitol Hill. But if it does, the legislation could either compel collective bargaining or potentially eliminate the possibility that it happens.

Any momentum building for action seems to favor bills that are less prescriptive, choosing instead to empower athletes or college sports leaders to make the changes they think are best for the future of the industry.

Democrats and Republicans are split on how to best deliver that power. Sen. Chris Murphy (D-Conn.) has introduced a bill that would give athletes the power to bargain against their schools. Sen. Ted Cruz (R-Texas) has proposed a bill that would give the NCAA freedom to make rules without the fear of antitrust litigation that has paralyzed the association in recent years.

Cruz said his bill aims to protect the interest of college athletes and give them a “real and vigorous voice” but also seeks to address the concerns that conferences and universities have about “the next step in this terrain” and what impact that might have on the valuable institution of college sports.

Because legal battles have been the driving force behind most major changes that have benefited college athletes in the past two decades, Murphy and others are concerned that giving the NCAA protection from future lawsuits would stymie any chance of future progress.

“I think the cleanest solution to this is to put the players in charge of bargaining for wages and benefits,” Murphy told ESPN. “That remains to me the most obvious way to deal with this.”

Murphy and Cruz agree that other proposals that suggest the federal government or federal agencies should get involved in the minutiae of regulating college sports are unsustainable solutions and would be a mistake.

Cruz, who is the ranking member of the Senate Commerce Committee that would start the voting process on a college sports bill, said he believes there’s about a 60% chance that Congress passes something. He said if Congress is going to act, it likely will be within the next nine months.

“Every program responsibly needs to think through what they would do if nothing passes,” Cruz said. “That is only prudent given the vagaries of Washington.”

Murphy believes congressional action is even less likely, and he’s disappointed in the lack of action that college sports leaders have taken to fix problems on their own.

“It doesn’t feel like they’re making much progress,” he said. “It feels to me like they’re hoping Congress fixes this problem for them. I think that’s very unlikely. Congress has bigger things to worry about.”

Proactive schools/conferences

The majority of college sports administrators aren’t ready yet to plan for a future where they are seated at a negotiating table across from athletes. But if Congress doesn’t provide the regulatory powers the NCAA wants, those same leaders are beginning to acknowledge they’ll have to be open-minded about the best ways to create future stability in their sports.

ACC commissioner Jim Phillips told ESPN he does not see a future in which any of his peers are interested in treating college athletes as employees. He doesn’t think his cohort is ready to talk about sharing revenue with athletes through some kind of NIL structure, either, but that stance is perhaps less of a permanent hard line.

“At this point there hasn’t been, from what I’ve heard, a collective feeling across schools and conferences supporting something like that,” Phillips said. “But times change, and we all understand we’re at a different place than we were two, five, 10 years ago.”

Phillips also pointed out that conference commissioners work on behalf of university presidents and chancellors, who ultimately would be responsible for deciding whether they were comfortable with their schools negotiating with athletes.

Other administrators such as Damon Evans from Maryland see a more pressing need to act in what he deems a “critical time” for setting the future model for college sports. Evans said that as the College Football Playoff expands and major conferences consolidate in 2024, players will be taking notice of the large influx of money flowing into athletic departments through revised TV deals and will want “a piece of the pie.” Evans said it’s inevitable that schools will share more resources with the athletes who help generate those massive new contracts, and he thinks it would be smarter for those inside college sports to sort out the details on how that should happen.

“Sometimes you have to take a look at yourself in the mirror and figure out where you are before you can know where you’re going. It’s time for us to stop being a reactive organization and be a proactive organization,” Evans said. “It’s OK to change. While some of us may resist that change, I’m going to embrace that change. If some of that benefits our student-athletes, that’s not a bad thing.”

If and when administrators decide they can better maintain more control over their sports or perhaps gain an edge on competitors at other schools or conferences by finding a way to share revenue, they will need an organized and professional group with whom to negotiate.

Cavale sees that as a partnership that he and his new company can help foster. The first step, he says, is creating a base of college athletes who have a better understanding of the business they help drive. When he started recruiting athlete members, that’s where he began.

“The thing that jumped out to me is that guys are going to have access to information,” Plumlee said about the initial pitch to join AO. “They talked about some other things that’ll be coming down the pipeline about how the narrative of a college athlete might be changing in the next couple years. The thing that jumped out to me was the access to information they’re giving to athletes.”