What Ted Cruz Doesn’t Understand About College Sports

Congress loves to hold hearings on the issue of how America’s universities might, in the future, pay their athletes. The legislative branch has held an astounding 10 hearings on the topic in the past half-decade, the most recent on Tuesday. These events are somehow even less interesting than they sound, in large part because the NCAA’s talking points are so thoroughly recycled. They always go exactly like this: First, the association—which is just acting on behalf of schools—begs for congressional intervention. (You see, 150 years weren’t enough to develop a cogent player-compensation system on their own.) Then, someone in Congress apes the wildly flimsy and already-unanimously-rejected-at-the-Supreme-Court view that interest in college sports has declined or will decline if/because players can now take money from third parties. (This week, the latest aper was Sen. Joe Manchin, a very rich man who’s never met a young American he thinks should have more money. Sen. Mitt Romney, too, has worried in the past about some players having nicer cars than others. And Southeastern Conference commissioner Greg Sankey, in a media interview, also had a taste.) Finally, nothing happens. Another hearing happens six months later. Wash, rinse, and repeat.

Sen. Ted Cruz feels there’s a 60 percent chance that Congress will soon pass a bill that governs how college athlete compensation works. You can be your own judge of how plausible that sounds given the current situation in the House of Representatives, and of whether Cruz is grandstanding or has earnest faith in a bipartisan breakthrough. But if he’s misreading the political environment, that’s not his only error. Cruz lacks a critical understanding of how college sports work.

The tell comes in how Cruz talks about a possibility that many college administrators (and the NCAA itself) see as a boogeyman: the concept of athletes becoming employees of their schools rather than keeping their hybrid student-athlete-unpaid-laborer role. “It would mean if suddenly you have a receiver who drops a bunch of passes, you can be fired and lose your scholarship,” Cruz said at this last hearing, as he ticked off other potential bad outcomes.

Should college athletes be employees of their schools? The simplest answer is that it probably depends, and that’s the one position that even progressive reformers have settled on in the past few years. Football players at Ohio State are different from rowers on a Division III crew team, in ways that weigh directly on traditional tests of whether someone is an employee or not. But Cruz’s misunderstanding isn’t about the law. It’s about the daily realities of college sports, especially at their highest and most cutthroat levels. Cruz warns of a world where a school can fire a receiver if he drops a bunch of passes, but he’s unaware that we already live in that world—just without the protections that said wide receiver would have if he were an employee. Cruz’s opposition might be right, but he’s throwing darts blindly.

Athlete employee status is thorny. I’ve covered athlete compensation and college sports economics for about a decade. I’ve interviewed athletes, labor lawyers, and union organizers about how player unionization might one day look. I’ve reported on the power dynamics that make it excruciatingly hard, but also powerful, for athletes to mount resistance when their schools let them down. The general counsel of the National Labor Relations Board cited several stories I wrote in her 2021 memorandum in which she opined that certain athletes should be treated as employees, and then we talked about it.

But I’m not sure, one way or the other, if athlete employee status would be a good thing. One practical argument against it is that it could create a visa nightmare for international students, who are rare in football but common in basketball and a handful of other college sports. Another is that NCAA president Charlie Baker probably isn’t wrong when he says athletes don’t want it. Having a capital-J Job comes with responsibilities (and accountants), and college athletes already have a lot of those during a short window when they’d like to have fun, be young and fit, and soak up their collegiate experiences. Their schools and the NCAA, needless to say, have done nothing to make them aware of some of the benefits that come with employment. Some athletes, though, have already demonstrated that they do know those benefits and have decided for themselves that they want them. Men’s basketball players at Dartmouth are trying to get the NLRB to rule that they are employees with the right to form a union. The board, in the coming months, will hash out that case.

But the mechanics of an NLRB ruling would not be to instantly turn all college athletes into employees and budding union organizers, as Jennifer Abruzzo, the board’s very pro-player general counsel, has explained to me. The NLRB doesn’t hold jurisdiction over public universities, who play most of the big-time football. (Also, Abruzzo does not decide board cases. She opines on them and directs agency enforcement staff. An actual panel issues the rulings, typically taking into account a general counsel’s opinion.) Other legal, legislative, and regulatory bodies—maybe federal, maybe state—would still have to assess the issue.

Which is why it’s so important that, as powerful bodies consider whether athletes are employees, they do so with more knowledge of college sports than Cruz has, or pretends to have.

College athletes already can and routinely do get fired for athletic underperformance. In the industry, coaches and player personnel staffers usually call it “a run-off.” Sometimes they might describe it as “processing” a player. A football team gets 85 scholarships, and every program has players who it eventually realizes aren’t good enough. Coaches frequently encourage or pressure those players to enter the NCAA’s transfer portal or otherwise leave the team, thus opening up a scholarship slot.

The practice is as integral to modern college football as marching bands or tailgates. The NCAA even codifies it in certain circumstances: In 2017, it passed a rule that lets newly hired football coaches chuck players off their roster, freeing up a scholarship spot, as long as the university continues to honor the scholarship and let the ex-player take classes. Deion Sanders, presently the most famous college coach who ever lived, just chased off almost Colorado’s entire roster so that he could replace those players with better ones. Those players didn’t do anything wrong other than go 1–11 last year. If they had guaranteed contracts like their coaches, they’d be entitled to a nice sum upon being fired for not being that good at football. If they seized on their employee status and formed unions, they could bargain for uniform severance terms. Even if they didn’t, they’d have particular rights as employees, including that their bosses would have to treat them as they’d treat anyone under the school’s employment policies. Athletes, for now, have no such rights.

There’s no path to fairly outlining the future of college athlete compensation if the people making the laws, and deciding the court cases, don’t grasp how this incredibly weird ecosystem works. Just as an octogenarian who asked Mark Zuckerberg how Facebook made money without users paying to use it was not a great candidate to effectively regulate Big Tech, a senator who doesn’t understand that college athletes can already get fired in everything but name is not positioned to make good policy about their working structure. Of course, knowledge of college sports isn’t a panacea. Alabama Sen. Tommy Tuberville has tons of it, having been a football coach at a handful of schools during a long and mildly above-average career, and his main priority vis-à-vis his former profession seems to be stopping athletes from sharing directly in the TV revenue their sports generate. After all, it’s possible that a world of athlete revenue sharing would mean less money for massive, heavily guaranteed contracts for coaches like Tuberville.)

None of that means that employment status is a silver bullet that can carry college sports through a prosperous next century. Jobs bring new complications, and if athletes became employees and then organized, they might find themselves getting rolled at the bargaining table. Rosters turn over rapidly, and athletes are busy, and their schools and coaches could put up various roadblocks to effective negotiations.

A cynical view would hold that those difficulties are why Notre Dame’s athletic director thinks collective bargaining, via some new structure that doesn’t include employment, might be a good idea. A less cynical view would hold that at least that administrator is trying to solve a contentious and so-far intractable problem. At least he understands the ground he walks on. Cruz, Manchin, and a significant swath of the United States Congress do not.

Update, Oct. 21, 2023: Ted Cruz’s spokesman Christian McMullin sent me the statement below in response to this story. Despite the accusation therein that my “intent is to disparage Sen. Cruz’s work to protect student-athletes’ rights to profit off their name, image, and likeness,” that was and is not my intent. Furthermore, athlete revenue-sharing or employment relationships—the subject of this piece—are separate from name, image, and likeness, which is run through third parties, as several witnesses noted at the hearing. —Alex Kirshner