Steven Senne/AP Photo
Massachusetts Gov. Charlie Baker gives a thumbs-up as he departs after delivering his state of the state address, January 21, 2020, at the State House in Boston. Baker has been selected as the next president of the NCAA, the largest college sports governing body in the country.
In December of 2021, Massachusetts Gov. Charlie Baker announced that he would not run for a third term, sparking the media’s favorite speculation game: Would the moderate Republican run for president in 2024? Take on Sen. Elizabeth Warren? Hindsight being what it is, those were hard-to-imagine choices. Having rejected Trumpism pretty definitively, he faced the prospect of a MAGA-fied state Republican Party ready and willing to turn any future primary contest he might wage into a living hell for him. A Warren-Baker matchup would have been difficult, expensive, and close. But being one of America’s most popular state leaders and master of the dying art of bipartisanship meant there were a host of nongovernmental positions he could waltz into with assurance of a warm welcome. Sure enough, one year later, the National Collegiate Athletic Association announced that Baker would be its incoming president.
Much scoffing ensued over Baker’s lack of college sports experience. But what if that was the point? Linda Livingstone, the Baylor University president and chair of the NCAA Board of Governors, indicated as much last week. The NCAA needed a political pro who could devote his energies to the organization’s ginormous court docket and related issues. “We all know that the challenges that we face are big, they’re complex, and they’re urgent, as we think about the future of college athletics, in legal, political and cultural environments that have changed drastically over the decades,” she said.
Last week, Charlie Baker got his first tough lesson in college athletics and sports law, courtesy of the National College Players Association. The director of the National Labor Relations Board’s Region 31 (Los Angeles) “found merit” in an unfair labor practice charge against the University of Southern California and the college athletics establishment, the NCAA and the Pac-12 Conference (which USC recently joined). NLRB General Counsel Jennifer Abruzzo had previously argued that many college athletes are actually employees; this would be the first NLRB case to put that to a test.
The charge brought by the National College Players Association alleges that the university and the two athletic organizations are joint employers that have “repeatedly” misclassified football and basketball scholarship recipients as “student-athletes” instead of employees. Classifying the students as employees would give the players the right to form a union and collaborate on strategies to improve their working conditions, and, most important, get paid. If the two sides cannot reach an agreement, the NLRB regional director would issue a complaint and put the case before an administrative law judge for a ruling, subject to an appeal before the Board. The Board would then decide if the three entities are, in fact, employers.
The courts, not the sidelines or luxury boxes, promise to be the new home away from home for Baker. The USC case is the latest legal shock to the NCAA system. Despite the money sloshing around in college sports that few athletes ever actually see, the substandard education that many players receive, and the injuries and psychological abuse that decades of reports show can have permanent effects, the NCAA and its member colleges cling to the fiction that players are amateurs benefiting from athletic scholarships.
Over the past two years, the “student-athlete” concept that the NCAA has planted its flag on has been under heavy and sustained assault.
That argument is undercut, however, by the billions of dollars the universities, their conferences, and the NCAA reap in endorsements, merchandising, and the media contracts through which they bring the games to an audience of mostly white fans, who watch elite football and basketball teams that field mostly African American players.
What is a possible endgame for the College Players Association? “An outcome the players’ association would be more than happy with would be a shift in the NCAA rules, even if it weren’t in response to a court order or in response to legislative action,” says N. Jeremi Duru, director of the Sport and Society Initiative at the American University Washington College of Law.
Over the past two years, the “student-athlete” concept that the NCAA has planted its flag on has been under heavy and sustained assault. In September 2021, Abruzzo issued a memorandum outlining her position that athletes are entitled to workplace protections under the National Labor Relations Act. She noted in a press release that “certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.” Earlier this year, the NCAA finally allowed the players to make money through name, image, and likeness (NIL) agreements. (However, only superstars and players with serious social media skills stand to benefit.) A class action suit is pending in the U.S. District Court in Eastern Pennsylvania. The plaintiffs argue that they should be compensated as employees under the federal Fair Labor Standards Act that regulates minimum wage and overtime pay.
Last year, the Supreme Court delivered the biggest blow to the NCAA’s amateurism claims—and fortunes—shortly before Abruzzo issued her memo. In a 9-0 decision, NCAA v. Alston, the high court ruled that the association could not prohibit players from receiving modest education benefits such as graduate or vocational scholarships. From the court’s right wing, Justice Brett Kavanaugh delivered a remarkable pro-labor concurring opinion—at least as it pertains to a tiny cohort of college athletes, many of whom, as he points out, “are African American and from lower-income backgrounds [and] end up with little or nothing.” He noted:
The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that “customers prefer” to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a “love of the law.” Hospitals cannot agree to cap nurses’ income in order to create a “purer” form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a “tradition” of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a “spirit of amateurism” in Hollywood.
Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.
Faced with an aggressive college player association storming the barricades, the NCAA’s amateurism argument cannot hide its century-plus traditions in an immensely lucrative and exploitative business model. If one conservative Supreme Court justice believes that players are employees, can the rest be far behind?
“The NCAA has seen the writing on the wall that their path to success through the judiciary is narrowing if not outright nonexistent,” says Ted Tatos, an economist and statistician with EconOne, an economics research and consulting firm.
Federal NIL legislation designed to bring order to a patchwork of state NIL laws is also in the mix. Sen. Tommy Tuberville (R-AL) told Sportico on Monday that an NCAA antitrust exemption would not be part of federal NIL legislation that he and Sen. Joe Manchin (D-WV) plan to file. A broader bill filed by a group of Democratic senators led by Sen. Cory Booker (D-NJ) covers NIL agreements, health and wellness standards, and education opportunities.
Enter Charlie Baker. “The selection of a former governor of a state who has never been involved meaningfully in the administration of collegiate athletics shows how serious they are about being able to be effective in that policy work,” says Duru, who sees Congress dealing with NIL issues and the courts handling employee questions. “Antitrust exemption or no antitrust exemption, without question much of the work of the NCAA in the coming years is going to be on the policy, legislative, and political sides.”
Yet Baker’s glowing national profile glosses over his mixed record as Massachusetts governor. He had generally good relationships with Democratic state lawmakers, though with a legislative supermajority, they could work with him or ignore him. During Boston’s ill-fated 2024 Olympic bid, he criticized the International Olympic Committee, an organization that has shared the NCAA’s insistence on labeling athletes as amateurs and does not pay for their work, for the financial demands it made on host cities. “The International Olympic Committee makes a lot of the rules,” he said, “but [doesn’t take on] a lot of the risk.”
A onetime health insurance executive before he ran for office, Baker also faced criticism for the state’s COVID response, the state’s vaccine rollout, and high nursing home death tolls. In June, the Vaccine Equity Now! Coalition, a statewide group, gave him mostly poor grades, including an “F” for accountability. Always a headache for Bay State governors, the Massachusetts Bay Transportation Authority kept putting the “D” in dysfunction on his watch. Early in his tenure, Baker fired the MBTA chief after several blizzards crippled the network and the region, and named a fiscal control board. But the downhill spiral continued and the agency careened from one federal investigation to another. Baker also marred his final days in office by seeking a pardon for a brother and sister convicted of child sex abuses. The decision prompted statewide outrage and he withdrew the pardon request.
The pressure Charlie Baker faces promises to be daunting, and the national scrutiny intense. The NCAA faces a comeuppance. The college athletics revolution will be televised. He just might find himself pining for the familiar confines of the Massachusetts State House.
