Paychecks, Drafts and Firings: The Possible Future of College Sports

LOS ANGELES — As Elijah Higgins sat on a witness stand last week, he detailed the similarities between his experience last season as a rookie tight end for the Arizona Cardinals and the four years he had spent playing football at Stanford University.

Five or six days a week at each level of play, he was immersed in football activities: lifting weights, practice, film study, physical therapy and playing games. There is travel on charter jets. Free tickets for friends and relatives. Robust coaching staffs setting rules.

There are some differences, Higgins allowed. In the NFL, there are no classes to attend, though at Stanford, he said, academics took a back seat to football, which is why he still has a few classes to take before earning his bachelor’s degree in psychology.

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The only other distinction is that, in contrast to Stanford, he now earns a paycheck. The minimum salary in the NFL last season was $750,000.

Higgins said that at Stanford, in an environment where critical thinking was encouraged, he had begun to consider how money drove what he called the college football “system,” where even at an elite university like Stanford, the pursuit of academics was encouraged only so long as it did not interfere with football.

“I do agree with the fact that college football players are employees without status,” he said.

Higgins was the last of about two dozen witnesses who had testified over the past five months in a National Labor Relations Board hearing that bears wide-ranging consequences for a narrow question: Should football players, and basketball players, at the University of Southern California be classified as employees?

The case may not be decided for months. But it will almost certainly end up in an appeals court, which is why there is such a voluminous record: 3,040 pages of transcripts from 21 days of testimony, along with more than 150 exhibits.

The record is so enormous that Eleanor Laws, the presiding administrative law judge who will determine how the National Labor Act applies to those players, granted lawyers an additional nine weeks to file their closing written arguments, which will now be due by July 31.

The charges have been brought by the NLRB’s general counsel on behalf of Ramogi Huma, the executive director of the National College Players Association, which advocates for college athletes’ rights. The defendants are USC along with the Pac-12 Conference and the NCAA, which may have to classify athletes at member universities as employees even though the board has jurisdiction only over private institutions.

The testimony was often dry, and the hearing, which closed Thursday, drew little attention as rafts of lawyers — as many as 16 at times — haggled over picayune details of control and compensation and whether athletes had actually been given the USC student-athlete handbook. (Though USC generated $212 million in athletic department revenue in the 2022-23 fiscal year, that is not relevant to the case, only that there is compensation and control.)

At times, the elasticity of reasonable arguments was tested.

For example, Jacob Vogel, the USC marching band director, spent more than three hours discussing with boundless enthusiasm the intricate details of his program, including how band members got dressed before football games.

The argument that playing football was little different from playing the tuba then came under cross-examination from Amanda Laufer, the lead lawyer for the general counsel, who asked how many of the 300 band members had no prior musical experience.

“About 10 to 15,” Vogel said.

“No further questions,” Laufer said, satisfied that she had provided a distinction with the football team.

The case is one of several fronts in the assault on the amateur model of college athletics. Emboldened state attorneys general have chipped away at the NCAA’s rule-making authority. Antitrust lawsuits that could force universities to pay out billions in damages are working their way through the courts. And last month, the Dartmouth men’s basketball team voted to unionize after winning the right to be classified as employees, a decision the college is appealing.

The NCAA is looking for relief from Congress, but any hope for an antitrust exemption is unlikely to come until after the presidential election — if at all.

The arguments before Laws lay out contrasting visions of what college sports might look like if athletes were employees.

One is apocalyptic. The other is sanguine.

Teresa Gould, the newly appointed commissioner of the Pac-12 Conference, which is losing 10 of its member universities to other conferences by August, including USC, which is leaving for the Big Ten, testified that high school football stars could be subject to a draft. She also argued that poor play — say a point guard who committed too many turnovers — might lead not to the player being benched but to him or her being fired.

Sonja Stills, the commissioner of the Mid-Eastern Athletic Conference, testified that her collection of historically Black — and historically underfunded — colleges and universities “can’t afford paying out students,” who in turn wouldn’t be able to afford college if their scholarships were taxed as income. She expected Olympic sports to be axed if money had to be redirected to athletes. Women’s sports could also be imperiled, she said.

And Anastasios Kaburakis, the founder of a company that helps international athletes find opportunities to play at American colleges, described how many of those athletes would be shut out by having to obtain work visas in the United States.

Those cataclysmic assessments were waved away by another witness: Liam Anderson, a distance runner at Stanford, who characterized them as “fear mongering.” He said that not every athlete should be considered an employee and that universities would adjust — much as they have as market forces have affected big-time college sports through so-called name, image and likeness payments that are often made through booster-funded collectives.

And if college football players and players in men’s and women’s basketball could be paid as employees?

“I’d celebrate that outcome,” said Anderson, who served two years as co-president of Stanford’s student-athlete advisory committee.

Anderson’s testimony was among the more compelling during the hearing, which took place in a conference room in a nondescript office building in West Los Angeles.

Anderson described staying at the same Las Vegas hotel last year during the NCAA Tournament as the Arkansas men’s basketball team. A security guard told Anderson his job was to ensure that players did not leave their rooms — a sign of control that buttressed testimony from former USC football players, who said they had been required to check in for meals with fingerprint scans and to text photos to anonymous attendance checkers to prove they were in class.

A loophole in the board’s byzantine rules allowed Anderson and Higgins, neither of whom attended USC, to testify — even after the general counsel had exhausted its list of witnesses. Because the NCAA had called upon athletes from other universities to testify, the general counsel was able to call rebuttal witnesses who also did not attend USC.

Opposing lawyers did not know who would be testifying until a witness took the stand, a procedure that protects witnesses in fair labor cases from intimidation. This often set off a flurry of computer searches by lawyers with sometimes only 30 minutes or so before cross-examination.

In the case of Anderson, that led to his being pressed by Daniel Nash, the lead lawyer for the Pac-12, to explain statements he had made in The Stanford Daily that were at odds with his testimony, including an instance in which he had called the idea of paying college athletes an “obvious financial impossibility” in a 2021 op-ed piece.

“My views on this have evolved,” Anderson said.

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