By Sean Gregory
January 8, 2018

Millions of people will tune into the College Football Playoff National Championship on Monday night, Jan. 8, hoping for a doozy. Even President Donald Trump is expected to be among the frenzied crowd at Mercedes-Benz Stadium in Atlanta when the Alabama Crimson Tide take on the Georgia Bulldogs (and Kendrick Lamar performs the halftime show). Expectations are high for good reason: Alabama is shooting for a fifth national championship in Nick Saban’s 11 years as head coach, while SEC rival Georgia—coached by former Alabama defensive coordinator Kirby Smart—squeaked by Oklahoma, 54-48, in a double-overtime shootout in the College Football Playoff semifinal on New Year’s Day.

The title game may well be another classic. But don’t let that obscure a much deeper problem behind all the pomp and hype. The College Football National Championship will do more than decide which university has the best team, it will generate millions of dollars for the universities, coaches, broadcasters, and sponsors. Other ancillary actors—Atlanta hotel operators, local restaurants — will rake in their own tasty haul.

The amateur players on the field, however, won’t share in that bounty, beyond a few thousands dollars on top of an athletic scholarship to cover the full cost of attending school. The NCAA, the organization governing big-time college athletics, prevents schools from paying their players, even as they make millions for their coaches and schools. Saban and Smart made almost $15 million combined this year.

“All today’s players can hope for,” says Jeffrey Kessler, a sports labor attorney who is leading a case against the NCAA, “is a better deal for the players that come after them.”

The case that could change college football

That may finally change. On Jan. 16, in a federal district courtroom in Oakland, Calif., judge Claudia Wilken will hold a hearing on motions for summary judgment in the case of Jenkins v NCAA, a class action suit that challenges the NCAA’s compensation limits on athletes. Wilken ruled on a similar case, the landmark O’Bannon v NCAA litigation, more than three years ago. While Wilken found in that case that the NCAA rules unreasonably restrained trade in violation of anti-trust laws, she did not lift the restraints entirely. Schools could still limit their compensation for athletes to the cost-of-attendance stipend, meaning the players would not be paid according to their market value.

Read More: The Case for Paying College Athletes

The Jenkins case, however, makes a broader claim than O’Bannon. Whereas O’Bannon concerned a college athlete’s ability to profit from the use of his or her likeness, Jenkins focuses on the market for signing college athletes to schools. It seeks to ends the NCAA’s blanket wage restrictions, and allow individual athletic conferences to determine the levels at which players should be paid. Kessler, who has represented the players’ unions of all four major U.S. professional sports leagues and helped NFL players win the right to become free agents in the early 1990s, is representing the Jenkins plaintiffs.

One expert likens the two cases to the work of an offensive lineman clearing the way for a running back: O’Bannon did the legal blocking, says Marc Edelman, a professor of law at Baruch College’s Zicklin School of Business, that could allow Jenkins to finally score big for college athletes. “The point of Jenkins is to create a universe in which the NCAA can no longer ubiquitously prevent college athletes from being paid,” says Edelman.

With more money sloshing around college sports every year, the case against paying players becomes increasingly difficult to justify. Saban made more than $11 million this season; Georgia paid Smart $3.75 million. Alabama pays two of its assistants — defensive coordinator Jeremy Pruitt, the incoming head coach at Tennessee, and offensive coordinator Brian Daboll — north of $1 million. Texas A&M just signed former Florida State coach Jimbo Fisher to a 10-year, $75 million deal; Fisher in turn just poached Notre Dame defensive coordinator Mike Elko with reported three-year contract at an average of $1.8 million a year.

How much money should college athletes be paid?

Why shouldn’t this bounty trickle down to the players who generate it? Antitrust economist Andy Schwarz, a staunch advocate for reallocating more flush college sports revenues to athletes, envisions a scenario where schools reallocate 30% of incremental athletic department revenue growth to a fund that compensates athletes: 15% for male athletes, and 15% for female athletes. Schools can keep 70% of the new revenues, plus all old revenues. If Alabama, for example, had followed such a model over the past four years, the school would have set aside, on average, $2.9 million annually to pay athletes. Alabama would have kept an average of $149.5 million per year, or 98% of all revenues.

“If schools ever want to get past their ‘can’t-don’t’ rhetoric and go for can-do solutions, all they need to do is just start fixing things,” says Schwarz. “Divert new money and in a few years the budgets will have adjusted just fine.”

The Jenkins case will likely hinge on whether the plaintiffs can convince the court that the paying players won’t adversely effect the college sports business. Anti-trust laws permit trade restraints — like a cap on compensation — if such restraints benefit consumers. In the O’Bannon case, the NCAA’s lawyers argued that college football and basketball is popular because players don’t get paid. Fans are attracted to the amateur ideal. In Jenkins, the NCAA will insist that the court has already established that paying players would hurt the college sports business, since in O’Bannon both Wilken and an appellate court gave weight to a survey from an NCAA research expert showing that 69% of respondents expressed opposition to paying college athletes.

Still, it’s hard to imagine rabid college sports fans leaving stadiums and TV sets in droves just because students at their favorite schools receive payment for playing football or basketball—which is why they’re at the school in the first place. In so many pockets of America, college football’s ingrained in the cultural DNA. Why would the tailgate lose its appeal when the star quarterback has an endorsement deal?

Further, as part of the Jenkins case, attorneys for the plaintiffs have filed their own consumer demand study with the court. Their survey expert concluded, “to a high degree of scientific certainty,” that additional compensation for college athletes would result in “no negative impact on consumer demand as exhibited through viewership /attendance of college football and basketball … If anything, permitting these additional forms of compensation/benefits could have a positive impact on such consumer demand.” Decades of American behavioral economics bear this finding out. As player salaries have risen exponentially with the advent of free agency and technological innovations that distribute the games to broader audiences, sports have become even more popular. The business has only grown.

Americans, it turns out, value fairness. “This case could make a great difference in the lives of those college players that will not make it to the pros,” says Kessler.

If it lives up to expectations, the Alabama-Georgia title game may be remembered for a long time. But the year’s most lasting college sports moment could unfurl in a courtroom.

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