Baker on the barricades (2023)

In December 2021, Massachusetts Governor Charlie Baker announced that he would not be running for a third term, prompting the media's favorite speculation game: Would the moderate Republican run for president in 2024? Face off against Senator Elizabeth Warren? Being what it is, those were hard decisions to imagine. Having rejected Trumpism quite definitively, he was faced with the prospect of a statewide Republican Party with MAGA ready and willing to make any future primary race he might fight in 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 a master of the dying art of bipartisanship meant there were a host of non-governmental posts he could fill in with a guarantee of a warm welcome. Sure enough, a year later, the National Collegiate Athletic Association announced that Baker would be its new president.

Much derision followed Baker's lack of college sports experience. But what if that was the point? Linda Livingstone, president of Baylor University and chair of the NCAA Board of Governors,indicatedboth last week. The NCAA needed a political professional who could devote his energies to the organization's massive court record and other related matters. “We all know that the challenges we face are big, complex and urgent as we think about the future of collegiate athletics, in legal, political and cultural environments that have changed dramatically over the decades.” she said.

But by Gabrielle Gurley

Last week, Charlie Baker received his first tough lesson in college athletics and sports law, courtesy of the National College Players Association. The Director of Region 31 of the National Labor Relations Board (Los Angeles) “found merit” in an unfair labor practice charge against the University of Southern California and the collegiate athletic establishment, the NCAA and the Pac-12 Conference. which USC recently joined). NLRB general counsel Jennifer Abruzzo has previously argued that many college athletes are actually employees; this would be the first NLRB case to test this.

The indictment filed by the National Association of Collegiate Players alleges that the university and the two sports organizations are joint employers who "repeatedly" incorrectly classified football and basketball scholarship recipients as "student-athletes" rather than employees. Classifying students as employees would give players the right to unionize and collaborate on strategies to improve their working conditions and, more importantly, their pay. If the two parties cannot reach an agreement, the NLRB regional director would file a complaint and refer the case to an administrative law judge for a decision, subject to appeal to the Board. The Council would then decide whether the three entities are, in fact, employers.

The courts, not the sidelines or luxury boxes, promise to be Baker's new home away from home. The USC case is the latest legal blow to the NCAA system. Despite the money spent on college sports that few athletes actually watch, the poor education many players receive, and the injuries and psychological abuse that decades of reporting show can have permanent effects, the NCAA and its member universities cling to fiction. that the players are fans. who benefit from sports scholarships.

Over the past two years, the concept of the "student-athlete" on which the NCAA has planted its flag has come under heavy and sustained attack.

However, that argument is undermined by the billions of dollars that universities, their conferences, and the NCAA earn in endorsements, merchandising, and media contracts through which they bring the games to an audience made up primarily of white fans. who watch the games Elite soccer and basketball teams using primarily African-American players.

What is a possible end for the College Players Association? “One outcome that the players association would be more than happy with would be an NCAA rule change, even if it is not in response to a court order or in response to legislative action,” says N. Jeremi Duru, director of the Sports and Society Initiative at the American University of Washington School of Law.

Over the past two years, the concept of the “student-athlete” on which the NCAA has planted its flag has come under heavy and sustained attack. In September 2021, Abruzzoissued a notehighlighting his position that athletes are entitled to workplace protections under the National Labor Relations Act. Is he around?observedin 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 players to earn money through name, likeness, and likeness (NIL) agreements. (However, only superstars and gamers with serious social media skills can benefit.)collective actionis pending in the US District Court for Eastern Pennsylvania. The plaintiffs argue that they should be compensated as employees under the federal Fair Labor Standards Act, which regulates minimum wage and overtime pay.

Last year, the Supreme Court dealt the biggest blow to the NCAA's claims of amateurism (and fortune) just before Abruzzo issued his memo. In the 9-0 decision,NCAA contra Alston, the higher courtruledthat the association could not prohibit players from receiving modest educational benefits, such as graduate or professional scholarships. From the right wing of the court, Justice Brett Kavanaugh issued a notably pro-Labour opinion, at least with regard to a small group of college athletes, many of whom, as he notes, "are African-American and low-income." income". . [and] end up with little or nothing.” He noticed:

The NCAA presents its arguments for not paying student athletes with innocuous labels. But record companies can't hide the reality: The NCAA business model would be outright illegal in almost any other industry in the United States. All restaurants in an area cannot unite to reduce cook wages on the theory that "customers prefer" to eat food from underpaid cooks. Law firms may not collude to pay the salaries of office attorneys in the name of providing legal services for the "love of the law." Hospitals cannot agree to limit the income of nurses to create a "purer" way of helping the sick. News organizations cannot join forces to reduce reporter pay to preserve a “tradition” of journalism facing the public. Movie studios cannot conspire to cut benefits to film crews to encourage a "spirit of amateurism" in Hollywood.

Pricing work is pricing work. And price-fixing work is often a classic antitrust issue because it extinguishes the free market in which people can get fair compensation for their work.

In the face of an aggressive association of college players storming the barricades, the NCAA's argument for amateurism cannot hide its centuries-old traditions in an immensely profitable and exploitative business model. If a conservative Supreme Court justice believes the players are employees, can the rest be left behind?

“The NCAA has seen the writing on the wall that its path to success through the judiciary is narrowing, if not completely non-existent,” says Ted Tatos, an economist and statistician at EconOne, a research and consulting firm. economic.

Federal NIL legislation designed to bring order to a patchwork of state NIL laws is also in the mix. Sen. Tommy Tuberville (R-AL)saidSportico on Monday that an NCAA antitrust waiver would not be part of the federal NIL legislation that he and Sen. Joe Manchin (D-WV) plan to introduce. A broader bill introduced by a group of Democratic senators led by Sen. Cory Booker (D-NJ) covers NIL agreements, health and wellness standards, and educational opportunities.

Enter Charlie Baker. “The selection of a former governor from a state that has never been significantly involved in the administration of college athletics shows how serious they are about being able to be effective in this political work,” says Duru, who sees Congress addressing the issues. of NIL and the courts. deal with employee problems. "Antitrust waiver or no antitrust waiver, no doubt much of the NCAA's work in the coming years will be political, legislative and regulatory."

However, Baker's glowing national profile belies his mixed record as Massachusetts governor. He generally got along well with Democratic state legislators, though with a large legislative majority, 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 shares the NCAA's insistence on labeling athletes amateurs and not paying them for their work, for the financial demands it places on host cities. "The International Olympic Committee makes a lot of rules," he said, "but [doesn't take] a lot of risks."

Baker, a former health insurance executive before running for office, has also faced criticism over the state's response to COVID, the rollout of state vaccines and the high number of deaths in nursing homes. In June, Vaccine Equity Now! The Coalition, a state group, gave it low marks, including an "F" for accountability. Always a headache for Bay State governors, the Massachusetts Bay Transportation Authority continued to put the "D" for dysfunction under their watch. Early in his tenure, Baker fired the MBTA director after several snowstorms crippled the network and the region and appointed a fiscal control board. But the downward spiral continued, and the agency went from one federal investigation to the next. Baker also botched his final days in office by seeking pardons for a brother and sister convicted of child molestation. The decision sparked outrage across the state, and he withdrew his clemency request.

The pressure facing Charlie Baker promises to be overwhelming and the national scrutiny intense. The NCAA faces a penalty. The college track revolution will be televised. He may feel anxious about the familiar confines of the Massachusetts State House.

gabrielle gurley

Prospect Senior Editor and award-winning journalist Gabrielle Gurley writes and edits on states and cities, transportation and infrastructure, civil rights, and weather. Follow @gurleygg

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