By Bobby Stroup
Right now in a Los Angeles courtroom, the fate of the NCAA hangs in the balance. Perhaps as a way to preempt the outcome, on December 6, NCAA President Charlie Baker sent a letter proposing some schools should be allowed to compensate student athletes for using their name, image and likeness (NIL). President Baker is right to try and get ahead of the student-athlete compensation issue, but NIL payments are not the only issue at play. Health care will also be a critical part of future student-athlete compensation conversations.
The NCAA describes the compensation lawsuits as beginning in 2009, yet exploring this topic reveals the debate is not so novel. The NIL terminology is newer, but limiting this to an NIL problem is overly narrow. The challenge of student-athlete compensation is a broader issue that started at the founding of the organization. This issue is rooted in more than a century of health policy, and understanding that history is essential to understanding future NCAA negotiations.
Protecting People Who Work
In 1905, college football caused 149 serious injuries and 18 deaths. The combined risk of this sport’s violence and its growing popularity necessitated governance. President Theodore Roosevelt stepped in and met with school representatives, insisting they come up with a solution. By 1906, the Intercollegiate Athletic Association of the United States (IAAUS) was born. IAAUS, later known as the NCAA, was created “to regulate the rules of college sport and protect young athletes.” Simply put, the NCAA was, at least in part, designed to be a public health institution, with protecting student-athletes as a founding principle.
Student athletes were not the only ones in need of protection in the early 20th Century. President Roosevelt was passionate about addressing the “cruel misfortune” of employment injuries for all Americans. Therefore, three years after his fateful conversation with college leaders, he signed legislation to ensure medical care for federal employees involved in workplace accidents.
Roosevelt’s passion was so great, he considered it “a matter of humiliation to the Nation” that the legislation was limited. He publicly pleaded for states to act where he could not. In 1911, states began answering his call to action and expanded workers’ compensation from a select few federal jobs to workers more broadly. The national consensus was that accidental injuries should be compensated by relevant organizations able to effectively distribute the risk.
Developing Medical Benefits
Despite the NCAA’s founding principles and nationwide sentiment to the contrary, the NCAA felt it was not their duty to provide accident protection for athletes. The organization, allegedly founded to preserve college athletes’ wellbeing, vehemently rejected the notion of providing health care compensation. The NCAA argued student athletes were amateurs, playing ‘for the love of the sport.’ Paying these participants in any way was seen as a mercenary pursuit, spoiling the game.
In 1942, employer business practices and NCAA student-athlete policies became even more disparate. Facing wartime economic inflation, the second President Roosevelt issued an Executive Order to freeze wages and prices. An important aspect of this “Economic Stabilization” order was allowing businesses to use health insurance as a way to compete for employees. Employees then started to see receiving medical benefits as a regular form of compensation.
Employers increasingly used health insurance as a recruitment tool, and legislatures nationwide established injury coverage as a bare minimum requirement for employers. Unfortunately, rather than embrace this movement, NCAA schools fought to avoid these responsibilities by denying they were “employers” for college athletes.
The In-Sanity Code
In 1948, Mississippi became the last state to adopt workers’ compensation laws, making the policy ubiquitous for all American employees. That same year, the NCAA, doubling down on its anti-student-athlete-employee stance, announced the “Sanity Code.” This new NCAA policy attempted to codify schools’ non-employer status by prohibiting any form of student-athlete compensation, including tuition scholarships and health care coverage.
The move was counterintuitive. Caring for student-athlete wellbeing should have led to either school-provided health care or wages for individuals to cover their own care. If the NCAA genuinely desired in loco parentis status, something their “amateurism” argument implies, they should have chosen at least one of those options. Instead, the NCAA took a hard pass on both. It was as if they believed investing in student wellbeing was mutually exclusive with teamwork and love of sports.
Eventually the NCAA did allow tuition scholarships, but the other compensation restrictions remained. Somehow the NCAA held all the power, directing student athletes’ fates, and yet managed to use the magical phrase, “student athlete,” as a way to shirk employer responsibilities. Athletic scholarships were allowed, but athletic salaries and medical coverage were completely off the table.
American courts didn’t help. In 1957, the Supreme Court of Colorado used the term “student athlete,” to deny a workers’ compensation claim made by a football player’s widow, saying “the college was not in the football business.” In 2000, another high-profile case (Waldrep v. Texas Employers Insurance Association) ended similarly, denying coverage for a player paralyzed by the sport. The NCAA had successfully leveraged the justice system to protect their interests.
Building a Future
Since Waldrep’s case, the NCAA started to make improvements in student-athlete health care. In April 2023, the Division I Board of Directors decided schools must provide full medical coverage for “athletically related injur[ies].” This move indicates progress, but the health care issue is far from resolved.
If the Los Angeles court rules in favor of the plaintiffs, student athletes may form employee unions and negotiate for higher quality health care coverage. Even without unions, if student athletes are employees, NCAA schools may face ACA employer insurance requirements. Either way, schools will be expected to provide more than just “athletically related” medical coverage. Further, President Baker’s proposal may be a best case scenario. The court might rule on principle, regardless of how schools’ sports revenues rank. The costs could be high for both the employer and employees in this scenario, drastically changing the compensation conversation.
Regardless of Baker’s NIL proposal, student-athlete employment status may arrive soon. Therefore, the NCAA must prepare for the return to their founding principle and determine how they will invest more in student-athlete health.
