Marc Edelman Discusses College Athletes as Employees on the Taboo Trades Podcast

Kim Krawiec (right), joined by guest hosts UVA Law 3Ls Olivia King and Alyssa Marshall, interviewed Marc Edelman (below left) about his recent publication (with Michael A. McCann and John T. Holden), The Collegiate Employee Athlete in the Illinois Law Review. Professor Krawiec's podcast operates like a live seminar, with well-prepared students, who have read the guest's work, posing well-crafted questions to which the guest responds.

Professor Edelman began the discussion by identifying three movements coalescing in the college athletes' rights movement. The first is the name, image, and likeness movement that is now permitting college athletes to promote products for money. Second, there are various strategies involving antitrust litigation to lift restraints that the NCAA and member schools impose to prevent college athletes from being compensated. Finally, there is the subject matter that Professor Edelman and his co-authors address in their work, which is labor law.

Professor Edelman starts with the simple proposition that college athletes meet the legal definition of employees. That means that they should be entitled to the protections afforded to other workers, including a minimum wage and workman's comp, but also that they should get the benefits of unionization, including collective bargaining.  The students, many of whom were themselves collegiate athletes, seem to have drunk the cool-aid on the employee argument, but they press Professor Edelman on the status of college athletes who are not revenu- generating. 

This podcast episode was a revelation for me. I was prepared to hate it. My posts on the subject of college athletics generally take the position that college athletics are a bizarre accident of history, unique to the United States, which undercuts the already rotting foundations of U.S. support for higher education. Professor Edelman comes at the topic from a different direction. And yet, o my surprise, Professor Edelman and I have very similar views up to a point. If he were writing on a blank slate, he says towards the end of the interview, he would de-couple the development sports leagues from higher education, as they do in other countries. That's my solution.

However, given that the cake has already been baked, Professor Edelman doesn't think we can separate the eggs from the flour. College athletics are already thoroughly commercialized, and students are exploited to benefit the universities. He thinks they ought to be treated as employees and have their right to organize recognized. Let the market for their services dictate the ways in which they are compensated for their labor and for the contributions they make to their colleges and universities. I have to admit that his approach is far more realistic than mine.

That said, while I am under no illusion that we will see college athletics dismantled in the near future, I do think we should nonetheless resist exacerbating the commercialization of college sports as well as the disconnect between the educational purpose of the universities and elite athletics programs. Professor Edelman is most eloquent on the ways in which educational institutions shamefully prioritize revenue from college sports over the overall welfare of college athletes. Universities switch conferences, forcing athletes to travel across the country. Everything is done with football in mind. Those games are at least played on the weekends. Basketball games can be played during the week, not to mention all of the non-revenue sports teams whose massive carbon footprints generate expenses well in excess of revenues. Universities give lip service to their educational missions but forget their purposes entirely when pursuing the broadcast revenues associated with the favored conferences. Based on the experience of friends who teach at the University of Oklahoma, I see no evidence that the immense revenues generated from joining the SEC have not benefitted university faculty and staff not affiliated with athletics.

I think Professor Edelman downplays the possibility for negative externalities associated with the gestalt switch for which he advocates from student-athlete to athlete-employee. I do not share his optimism that making college athletes employees will have a dramatic impact on the economic well-being of the typical college athlete. His focus is on "revenue-generating athletes," and I do not think it will be as easy to determine which athletes are revenue-generating as Professor Edelman assumes.  Very few individual athletes generate net revenue. Although they may play a key role, nobody other than family and close friends come to a college football game to see the offensive linemen or the long snapper. What will it do to team morale if some players are employees and some are students. More likely, the decision would be made on the team level. Treating athletes differently based on what sports they play will change behaviors in myriad ways. Professor Edelman has written elsewhere that Title IX is a red herring, and the subject did not come up in the podcast. I'm pretty sure it would come up from day one if a school has some male employee athletes and no female employee athletes. 

I also think Professor Edelman downplays the benefits that students athletes enjoy. He grudgingly grants tuition as a benefit. One of the students raises the idea that for some sports, college athletics is the only path towards professional sports. Well, when I played in a recreational softball league, I paid for the privilege of playing. My team had no coaching staff, and certainly not a professional-level coaching staff. We had no trainers, nutritionists, fitness experts, physical therapists, or tutors. We did not have a bespoke sports facility to which only we had access, nor was there a stadium or training facility built to meet our needs. The team did not pay for my travel. All these factors should be counted as benefits that students receive in exchange for performance. This is why the math becomes challenging on the question of which athletes are "revenue-generating."

Overall, only a handful of university athletics programs generate income over expenses. Those that do tend to reinvest the surplus into athletics programs. That's why I would unbake the cake as much as possible. The finances of college athletics are already decoupled from those of higher education. There would be a lot of psychic boundaries to overcome, but universities are not dependent on income from sports. Their fuel is tuition and, for some, endowments. The sports programs are financially siloed off. 

A note on terminology: Professor Edelman treats the term "student athlete" as an ideologically tainted neologism created by the NCAA to facilitate its exploitation of students. His preferred term is "collegiate employee-athlete." I have referred to "college athletes" in this post because it makes sense in the context of his scholarship. However, notwithstanding the origins of the term, I think it has lasting value to think of college athletes as "student-athletes." Most college athletes are not revenue-generating athletes. Most of them think of themselves as students first. They enjoy athletics, and it might help pay for school, but they are in school for the education. Students first; athletes second, hence student-athletes. Very few collegiate athletes become professional athletes, and so most athletes, including most in revenue-generating sports, would be better off thinking of themselves as student-athletes. As a result, I do not think it promotes the best interests of student athletes to get them to think of their main purpose as athletics.

Notwithstanding that disagreement on the level of student-athlete consciousness, Professor Edelman has persuaded me that at least some collegiate athletes are entitled to be considered employees and thus are entitled to unionize and to enjoy the benefits of collective bargaining. I regard this as a second-best solution. It is certainly an improvement over the current state of affairs, which benefits mostly adults -- university administrators and coaches -- exploits collegiate athletes, and massively detracts from the purpose of universities.