You’re a coveted football star in the 2020 high school graduating class. Here are your options:
• Join a team in a major college football conference, where starting quarterbacks earn up to $100,000 per year.
• Sign up for the TFL (Tech Football League), where you might play in a rivalry game between the Ellison Oracles and the Cuban Cubans.
• Play in the NFL-D (National Football League-Development), where you could sign with the minor league Cowboys and suit up in Jerry Jones’s AT&T Stadium.
All of these scenarios are imaginable with the recent National Labor Relations Board decision granting Northwestern University football players the right to unionize. Pending the school’s appeal, the NLRB now considers scholarship football players to be employees of their institutions, not student-athletes.
The ruling by NLRB regional director Peter Sung Ohr could make him one of the most influential figures in football history. Not only could his decision prompt reforms within the NCAA and spur new football business initiatives from wealthy entrepreneurs, but most important, it could give college-age players more choices as they begin their careers in football.
I’ve represented professional football players and coaches for more than 25 years, so I’ve had an up-close view of the college football moneymaking machine, and I’ve heard many sad stories of athletes being betrayed by coaches and universities in the NCAA system. The NLRB decision was inevitable and foreseeable.
In 2010, I proposed that the NCAA’s sham amateur football system should end; it is already professionalized, except that the players don’t share in the profits derived from their labor. The NLRB has taken a step toward affording college football players full participation in the capitalist system, with all its risks and rewards.
So what does the 2020 college-age football world look like for that highly decorated high school senior?
Well, he won’t be able to go directly from high school to the NFL, even if he’s good enough. The NFL Players Association and the league have agreed, through collective bargaining, that players cannot enter the NFL until they are at least three years removed from their high school graduation date. This arrangement appeases those who are concerned about safety risks for physically immature teens playing with physically mature men, and it ensures good relations between the NFL and the NCAA, its de facto minor league.
Neither of these reasons is valid — for example, if a player is physically unprepared for the NFL, personnel evaluators won’t offer him a job — but since the NFL has collectively bargained for this prohibition, the system is immune to antitrust challenges.
So the next option for our high school star will be to play major college ball. Currently, 120 universities are playing NCAA Division 1 football. If the Northwestern decision is upheld, many schools will drop the sport because they won’t be able to afford it, meaning that fewer jobs will be available at major universities for our young star.
Indeed, by 2020, it is possible that only 50 to 60 schools will participate in a system in which they must negotiate working conditions with a union representing football players. (While the current NLRB decision applies only to private universities, it’s an easy legal bridge to cross for union organizers seeking to extend the impact to public schools as well.)
The union players will have a collective-bargaining agreement establishing standards for salaries, medical care and insurance coverage. They may benefit from academic reforms, such as the ability to pursue any major, as opposed to being funneled to courses designed to keep them eligible. The union players also may bargain for greater freedom to transfer from school to school. And the playing schedule also may be shorter — say, only 10 regular-season games instead of 11 or 12 — but each game will be a high-quality matchup; no more Ohio State 76, Florida A&M 0.
Major university coaches may balk at some of these changes, but such reforms will relieve them of a burden they’ve been carrying for far too long — the burden of hypocrisy. They know that their players work hard at jobs that generate tremendous revenue. Once players are paid a value, negotiated at arm’s length, coaches making millions will have some relief for their consciences.
Of course, our high school star may have other options beyond university settings. For example, deep-pocketed tech entrepreneurs could disrupt the football business, as they’ve already changed communication and entertainment.
Larry Ellison of Oracle — who happens to have enough money to buy the entire NFL — is rumored to be interested in the football business. And Mark Cuban, owner of the NBA’s Dallas Mavericks and a vocal critic of the NCAA and its past lack of a Division 1 football playoff system, even formed a company to promote playoff games between the best teams.
A group of rich and ambitious innovators such as Ellison and Cuban has the ability to create its own league, stocked with talent between the ages of 18 and 20. It can give these players free-market salaries and even offer them educations through partnerships with colleges or vocational schools. A Tech Football League could be televised on any number of cable channels hungry for fresh content (perhaps on Cuban’s own AXS TV) or streamed online. And if the TFL can sign enough high school stars, fans will follow, because fans want to see the best performers.
Of course, this may or may not affect fan interest in major college football. Many fans may stop watching Alabama and Texas if they know that the talent is inferior, while others may feel loyal to the college jerseys. The free market will determine winners and losers, and those college-age players in 2020 will have to learn how to weigh such market risks.
If a Tech Football League sounds preposterous, remember that recently deceased Buffalo Bills owner Ralph Wilson once joined with seven other millionaires in 1959 to form what they called the "Foolish Club" — eight men foolish enough to take on the NFL by forming the AFL, the American Football League. Thanks to Wilson and his friends, NFL fans now have the Bills, Titans, Jets, Broncos, Chargers, Raiders, Chiefs and Patriots to cheer (or despise).
One final option for our 2020 high school star is playing for pay in a new NFL developmental league. The NFL has tried this before with NFL Europe and the World League of American Football. Those leagues, however, relied on players recently out of college who weren’t talented enough to play in the NFL right away. Fans didn’t support the leagues because they knew that the best talent was in the NFL and because those leagues played in the spring — a non-traditional football season.
NFL-D would draw upon the best emerging talent in those first three years out of high school. Imagine if Johnny Manziel had played at age 19 for an NFL-D team instead of Texas A&M. With the NFL’s marketing muscle and players such as Manziel, fans could be attracted to the new college-age league. NFL-D could also be televised by the NFL Network, already in more than 60 percent of all TV homes in the country.
Ohr’s decision in the Northwestern University case could change the lives of the next generation of football stars. Until now, there has essentially been but one path to a professional football career: Work for three years for no pay and no say in the NCAA. Watch coaches, administrators, networks and sponsors make millions while you’re prevented from making anything. Suffer limited transfer abilities, live under the thumb of coaches and administrators who can eliminate your scholarship at will, and have no influence over the medical care or attention you receive. And suffer a final indignity when your labor subsidizes scholarships for athletes in sports generating no revenue.
Every previous sports business similar to the NCAA model has died. Major League Baseball players once had no free agency; their contracts could be renewed year after year after year, without negotiation. NBA players once had to wait four years after high school to enter the league, even though their skills demanded otherwise.
Oppression can only last so long. The NCAA is about to find this out.
Donald H. Yee is a lawyer and partner with Yee & Dubin Sports, a Los Angeles sports-management firm that represents professional athletes and coaches, including New England Patriots quarterback Tom Brady and New Orleans Saints head coach Sean Payton.