The NCAA, antitrust and the future of college sports

The NCAA is asking Congress to keep college athletes as students, not employees.

They say it's to protect the students.

Opponents say it’s about the money. Will the NCAA get its antitrust exemption and what could it mean if it does?

"Its mission is to protect athletes but that is not how the NCAA behaves," Katie Van Dyck, a senior legal counsel at American Economic Liberties Project, says. "The NCAA seems to be acting to protect the interests of the schools and the conferences and its own financial interests."

Today, On Point: Sports, money, monopoly and the NCAA.

Katie Van Dyck, senior legal counsel at American Economic Liberties Project. Author of the forthcoming report "Playing by the Rules: The Case Against an Antitrust Exemption for the NCAA."

Jill Bodensteiner, vice president and director of athletics at Saint Joseph’s University.

Part I

Put yourself back in 1922. Warren G. Harding is president.

WARREN G. HARDING: My countrymen, the first claiming source of Americanism was writed in framing the Federal Constitution in 1787.

CHAKRABARTI: It's a time, so long ago, that only a couple of years earlier, a radio station reporting mostly live results of the 1920 presidential election begins its broadcast with the equivalent of, is this thing on?

NEWS BROADCAST: This is KDKA of the Westinghouse Electric and Manufacturing Company in East Pittsburgh, Pennsylvania. We shall now broadcast the election returns. We'd appreciate it if anyone hearing this broadcast would communicate with us, as we are very anxious to know how far the broadcast is reaching, and how it is being received.

CHAKRABARTI: It just so happens that 1922 was a notable year for another reason. That year, the Supreme Court made a decision in favor of Major League Baseball. It's a decision so unique, baseball has enjoyed the fruits of the ruling all alone for more than 100 years. Because 1922 was the year that the U. S. Supreme Court made the quizzical decision to grant baseball an exemption from antitrust laws, because, according to Justice Oliver Wendell Holmes, quote, "The business of giving exhibitions of baseball are purely state affairs." End quote.

And therefore, do not violate the Sherman Antitrust Act. Even though Holmes also admitted that, quote, "In order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and states." End quote. Even though subsequent courts have called the 1922 ruling an anomaly and an aberration, Major League Baseball has continued all on its own to enjoy the perks of its antitrust exemption.

But perhaps no longer, because now the NCAA wants to muscle in on the monopoly game.

(LSU GAME ANNOUNCER) (CHEERS)

CHAKRABARTI: This is On Point, I'm Meghna Chakraborti, and that was from the LSU women's basketball team winning their first ever championship title this year. A very cool moment. Now, NCAA sports is very popular. And very big business. Division 1 sports are valued at almost $16 billion per year. And for years, debate has continued to ratchet up over the players, a.k.a. the student athletes, who make the magic on the court, in the field, in the pool, and in the gym. The debate's over whether they deserve to get paid.

Now the NCAA is doing everything in its power to be sure that does not happen, and it's now turning to Congress and requesting that representatives and senators grant the NCAA an antitrust exemption, similar to what Major League Baseball got from the Supreme Court in 1922, in order to protect the sanctity of collegiate amateur sports, the NCAA says. Because if they have to pay players, NCAA President Charlie Baker warns that collegiate sports, as you know it, could cease to exist.

CHARLIE BAKER: Because I do believe in your state and in the state of every single person on this committee, literally thousands of your interscholastic athletic programs will go away because it completely changes everything about what it means to be a student athlete and what it means to be a college that supports student athletics. And I think that's a problem.

CHAKRABARTI: Is it? By the way, Major League Baseball is back at the Supreme Court because a new case brought by the minor leagues and the Baseball Players Association is challenging MLB's antitrust exemption. And according to legal experts, this case has the best chance in a half century to knock down baseball's 100-year-old monopoly status.

So clearly there is a lot of action going on around sports, players, and monopolies, and today we're going to specifically take a look at the NCAA. And to do we're joined by Katie Van Dyck. She's senior legal counsel at the American Economic Liberties Project. She's also author of the forthcoming report, "Playing by the Rules: The Case Against an Antitrust Exemption for the NCAA."

That's going to be published later this year. Katie, welcome to On Point.

KATIE VAN DYCK: Thank you for having me.

CHAKRABARTI: Okay. So first of all, let me ask you, what piqued your interest about collegiate sports and the fact that the NCAA is seeking an antitrust exemption?

VAN DYCK: I grew up in the state of Texas.

CHAKRABARTI: (LAUGHS) Okay.

VAN DYCK: And what Lindsey Graham called the religion of college football.

And I'm a big TCU fan, who made it to the college football playoffs last year. But, as an antitrust lawyer, seeing the gross profits, the huge revenues that the NCAA and its member schools bring in every year off the backs of these athletes' blood, sweat and tear, it begs the question, what exactly is this system?

As Charlie Baker said, what does it mean to be a student athlete?

CHAKRABARTI: Now, I just want everyone to know that a little later in the show, we are going to be hearing from the director of athletics from a college. So we'll get that perspective for sure. But Katie, so tell me a little bit more. What exactly is the NCAA asking Congress to do?

And why is it going through Congress and not the courts?

VAN DYCK: So to answer your second question, it's going through Congress and not the courts, because the courts have already said that the NCAA is not exempt from our antitrust laws. With respect to what exactly the NCAA is asking for, Charlie Baker wrote in an op-ed a few weeks ago that we need, that Congress needs to, quote, expand the NCAA's legal authority.

And to understand exactly what that means, we do have to go back a few years and look at the Supreme Court decision from 2021, Alston v. the NCAA, that has led us to where we are today. And to explain real quickly what exactly antitrust means. So our antitrust laws, specifically the Sherman Act for our purposes today, says that contracts and restraint of trade are illegal.

So what does that mean? That means that two businesses, in this case, two or more businesses, in this case, the NCAA and its member schools and its member conferences, can not come together and agree to artificially fix prices, and that's exactly what they did. And that's exactly why the Supreme Court said these were naked violations of the law.

The NCAA set rules limiting how much money schools are allowed to give to its student athletes in Alston, specifically education related benefits, and the schools agreed to abide by those rules. And that is a per se naked violation of the Sherman Act. And the court said, what you're doing here before this court today is asking for immunity from our antitrust laws.

And we're not going to give it to you. Your claim that these students are amateurs is a myth. You had five years to tell us what amateurism is and you haven't done it. And so we're not going to allow these blatant violations of the law anymore. Okay, but the NCAA though did make a significant change thereafter, if not paying all athletes, but allowing athletes to use their, what, name, image, and likeness for contracts and to get paid that way.

Is that not right?

VAN DYCK: That is correct. So after that decision came out, the NCAA went, "Okay, we have a problem now." And they temporarily lifted their ban on, as you said, name, image and likeness contacts. And that just means endorsement deals, when someone's picture is on the box of Wheaties, or the Alabama quarterback is in a national diet Dr. Pepper commercial. That's what that means.

And so the NCAA has temporarily lifted its ban on that, but it wants to regulate it more. And as Charlie Baker has said, they know they can't do that under Supreme Court precedent now, so they're trying to get Congress to let them.

CHAKRABARTI: Okay, so then Congress would essentially, what, have to write a specific law favoring the NCAA's request that even though it operates nationally, across state lines, technically, they haven't defined what amateurism is, they still should be exempt from rules that would regulate any other kind of business with similar practices.

VAN DYCK: Correct. Just like it regulates the NBA and the NFL and NHL.

CHAKRABARTI: Okay. I suppose I just asked a loaded question. But tell me, what is your argument against Congress giving the NCAA an antitrust exemption?

VAN DYCK: First of all, antitrust exemptions are rare for a reason. The reason, when you look at the history of antitrust laws in the United States, the reason these were passed, the reason the Sherman Act that I was just talking about was passed is that Congress viewed this sort of monopoly power as destructive to our society and inherently in conflict with a democratic society and a democratic economy.

I'm going to paraphrase a little bit here, but John Sherman, the architect of this law, said if we won't tolerate a king in our political system, we shouldn't tolerate a king in our economic one. And what this recognizes is that it creates an extraordinary imbalance of power so that the NCAA and the schools are bringing in $3.3 billion a year in television revenue.

And athletes get and coaches are paid enormous amounts, and athletes do not have any protections or ability to bargain against that, they don't have the ability to bargain for better what are essentially working conditions, safer practices, better hours. And their wages are artificially depressed.

When you look at what a professional athlete makes vs. a athlete in college.

CHAKRABARTI: Okay. So today we are talking about the NCAA's request to Congress that it be granted an antitrust exemption. Because the NCAA argues that if it doesn't get it and it eventually has to pay student athletes, that would destroy the concept of amateur college sports and could actually eliminate some of those sports all together.

So we'll have a lot more when we come back.

Part II

CHAKRABARTI: As I mentioned earlier, we're going to be hearing from a director of athletics from a college in just a couple of minutes, but Katie, can you tell us a little bit more about the amount of money we're talking about that flows through college athletics and how much of that, what percentage of that, players, college athletes get, at all, beyond the name, image and likeness deals that they can now strike?

VAN DYCK: As I said a few minutes ago, the business of college sports is huge. I think it was $3.3 billion that we saw flow through the NCAA and the conferences to schools last year. And so where does that money go? The highest paid college coach is Nick Saban.

He's the football coach at the University of Alabama, and he makes over $11 million a year. The average football coach salary is about $6.5 million a year. The commissioner of the SEC, that's the Southeastern Conference, makes $3.7 million a year. Another highly paid coach, Jimbo Fisher at A&M makes $8.6 million a year.

His team is five and three. He hasn't been doing that great, but the school can't fire him without paying him a buyout worth over $70 million. And so what are the athletes getting? An average scholarship in Division I athletics is about $14,000 a year. Now, a lot of people say, wait, they are student athletes.

They're getting an education for free, right? What's the graduation rate for football players? 65%. The graduation. Rate for basketball players for men is 47%. And that's much lower than the overall student body rate of about 70%. Athletes are forced into easy majors.

Their scholarships aren't guaranteed, if they get injured so that they might not be able to complete their degree. They're also not guaranteed to extend beyond their athletic, their eligibility to play. And so somebody might spend their four years devoting, what is it? 42 hours a week to college football, taking the minimum number of classes and then they're done and they don't have their degree.

So that is what we're talking about when we're talking about economic power in college sports.

CHAKRABARTI: Okay. So actually let's listen to a little bit of some very recent testimony that's happened in Congress over this exact issue. First of all, I want to hear from Jack Swarbrick, vice president and director of athletics at Notre Dame.

He testified before the Senate Judiciary Committee on October 17th. And he echoed the line from the NCAA that college athletes must remain students first and not employees.

JACK SWARBRICK: And if you put them in a separate category, with all the consequences that have been articulated here, that goes away immediately. And we no longer have the model that we understand as intercollegiate athletics today, and fundamentally separates us from the educational value.

As President Baker's Association points out regularly, the vast majority of student athletes are not going on to continue their sport after they leave college. It is the education which is the primary value of their experience. We have to protect that. We have to protect their ability to be admitted under the same standards, to be educated under the same standards, and to learn under the same standards. If you take that away, you do enormous damage to those current students.

CHAKRABARTI: Katie, would you want to respond to that?

VAN DYCK: When he says that student athletes shouldn't be in a separate category, I agree with him, and what I would say is that they're in a separate category right now. There are plenty of students on campus who have jobs that are with the university, there are work study programs.

There are residential assistants, RAs who are both employees and students at the school. You can have both and you can treat and you can give athletes the same rights that every other employee who performs work that benefits their employer, in this case, to the tune of $3.3 billion. And they should have the same protections that every other employee in the United States has.

CHAKRABARTI: Okay. Swarbrick there mentioned what he called President Baker and that's NCAA President Charlie Baker. He was also at this hearing before the Senate Judiciary Committee this month, and he outlined specifically the thing he wants Congress to do.

BAKER: We support codifying current regulatory guidance into law by granting student athletes special status that would affirm that they are not employees.

And on this point, we're not alone. I visited Augustana College in South Dakota a few months ago with Senator John Thune to hear student athletes talk about why they don't want to become employees. The elected student athlete representatives from all three divisions are on record saying the same thing.

They fear the current legal landscape turning them into employees, and they have called for action. The athletic conferences representing the vast majority of historically Black colleges and universities have also supported this policy. They believe the progress they've made educating young people of color would be at risk if their athletic departments had to become employers.

CHAKRABARTI: Baker there mentioning the representatives of student, elected student athlete representatives. Ramogi Huma is the executive director of the National College Players Association, and during his testimony before Congress, he said this.

RAMOGI HUMA: The injustice that has been inflated on college athletes seem to be fine for the industry until we won some court rulings and state legislature started passing laws.

The industry had a monopoly on college athletes' NIL value. They owned every penny. Nike wants to slap a logo on a kid. Got to pay the school kid. Can't get a penny. That's what this is about. They even, many of the schools even said, "Hey if that happens, we're going to lose money." That means you've been stealing money from these kids, if it's against the Supreme Court, if it violates antitrust law.

That's the problem, the opposition, even employment says, all this is about, we don't want to pay them, fairly. And Notre Dame, I know they, I would imagine they have students in the bookstore as employees, it doesn't seem to harm their educational opportunity. There's no congressional hearings about that.

We're talking about equal rights, and this industry is operating in an illegal fashion. It's breaking antitrust law, breaking labor laws, and now it's coming home, and players are getting, pulling leverage and here we are saying the sky's going to fall.

CHAKRABARTI: So that was Ramogi Huma, executive director of the National College Players Association.

I'd like to bring Jill Bodensteiner into the conversation now. She's in Philadelphia and is Vice President and Director of Athletics at St. Joseph's University. Jill Bodensteiner, welcome to you.

JILL BODENSTEINER: Hi Meghna and thank you for inviting me to On Point.

CHAKRABARTI: First of all, tell me. There's something that Katie mentioned earlier, which is really at the almost sort of philosophical heart of this debate.

And that is the notion that college athletes are student athletes, right? Scholar athletes. And therefore, they are not professional athletes. They should not be employees, because they're amateurs. Supposed to be students first. But, as Katie pointed out, it's still not clear what the definition of amateur athlete is in the college context.

What would you say it is?

BODENSTEINER: Let's start with the premise that you went to Oregon State, I think, and Katie went to TCU. Life at St. Joe's is different. And when people make sweeping, broad statements like, "You don't get a scholarship if you're injured, and nobody finishes their schooling.

And if you don't finish, the school won't pay for you later. And there's low graduation rates." That is absolutely not the world I live in. And so at St. Joe's, we have our student athletes graduate at a higher rate than our undergraduate student body.

Our Black student athletes graduate at a higher rate than our white student athletes. We have outperformed the student body when it comes to GPA for the past several semesters and Katie's notion that you're not allowed to take whatever courses you want is just not accurate. And so people are picking stories.

One-off stories and saying this is all of college sports, and it's just a fundamentally reject the premise of that. So at St. Joe's are primary. Our number one major is finance. Our number two major is the health sciences. We had a pre-med who's now in med school on our men's basketball team.

This is just not the world we live in, and it may be the world at Oregon State and TCU, where you had classmates who are experiencing this, but it is not the world I live in, the vast majority of Division I college athletics. And let me start with a little other misinformation.

CHAKRABARTI: Actually, can I stop it there since you've mentioned specific universities a couple of times?

First of all, I will say, Go Beavers! Because yes, I did graduate from Oregon State University, but no matter, we could pick schools like Oregon, schools like TCU, Ohio, whatever. Take your pick. And yes, there are the big ones that are the heavyweights in the NCAA, but that still doesn't answer my question.

How do you see what an amateur college athlete is? How would you define amateur athletics within the NCAA, 'cause that's one of the key questions here, and I am eager to hear your view on that.

BODENSTEINER: Yeah. At our campus, which we call Hawk Hill, come to Hawk Hill for a day and see what an amateur student athlete is.

They're missing practice to go to a lab. They're coming late to tennis practice because they're a neuropsych major. They are, like I said, I think I thought that I was telling you what I thought amateur student athlete looked like when I tell you they're outperforming our student body in every measure academically.

And so how is that not a student athlete? Now our NIL deals are limited. They are working campus jobs to make ends meet. They're getting some or all of their education paid for. And that's what college athletics looks like at Hawk Hill. And so I think the $3.3 billion in this picture that everyone painting is just not an accurate description at every school in Division I.

In fact, I think the exact opposite. The vast majority of Division One is working really well. And so my definition of an amateur student athlete is one who pursues the education they want to pursue and they do it well. And they happen to love sports and compete there to their absolute highest and optimize their growth on the fields and courts as well.

CHAKRABARTI: Okay. I'm going to get back to Katie Van Dyck here in a second, but as a director of athletics and vice president, Jill, do you know about how much money does flow through to St. Joseph's due to your athletics program?

BODENSTEINER: We are subsidized to the tune of 80% by the university.

CHAKRABARTI: So meaning what?

BODENSTEINER: They pay us, we lose money.

CHAKRABARTI: I got it. Okay.

BODENSTEINER: A significant amount of money, and the university supports it by giving us $10 million in student financial aid to give to our student athletes, like the biggest go-to-college program, the NCAA is, since the GI Bill. So the university gives us $10 million for financial aid.

We pay for our salaries, and we pay for our coaches and our athletic trainers and our sports psych, and our nutrition and everybody, our academic success personnel, everybody who has a role in shaping the experience of our student athletes, and then we pay for to get to point A and B. We are not flying across the country.

I think everyone thought when the Big 10 became the new big 10 that all of Catholic college athletics has gone to hell. And St. Joe's rowers are flying to Stanford like that's just not reality, guys. It's just not reality. We have 250 of our 500 athletes who only drive to competition.

CHAKRABARTI: Huh.

BODENSTEINER: So this is just the picture that you're all trying to paint is not reality.

CHAKRABARTI: This is exactly why we wanted someone like you on the show, right? Because Katie, let me turn back to you. In all fairness, Jill is making a really important point. That when we talk about the NCAA, the mind naturally goes to the giant teams and universities, some of which Jill has mentioned. The ones that get those lucrative television contracts and can pay their coaches $6 million, $7 million or $8 million, as you had mentioned.

However, a wholesale change in rules about college athletes and whether if they could get paid, if they were employees of a university would impact everybody in the NCAA, many of which include teams like St. Joe's, that don't behave the same way.

So could that be really the risk that Charlie Baker's talking about when he says this could actually change college athletics as we know it, Katie?

VAN DYCK: So first of all, I want to say bravo to Jill and St. Joe's to the extent they're allowing athletes to actually be students first. And to the extent that these athletes are succeeding in incredible ways.

And in their college student experience, that's fantastic. I applaud them for that. But I don't think it's fair to say all the numbers that I was rattling off are inaccurate because yes, St. Joe's is, apparently, very successful in terms of graduating their students. And not just graduating them with valuable degrees and rich learning experience, but that's not true for everybody.

I highly doubt that a football player at Ohio State can skip football practice before the Michigan game so that he can go to a lab. But regardless, what we're talking about here is what are athletes? Let's take a step back and say, what do athletes not get because they are employees? They aren't entitled to minimum wage.

They don't get overtime. There's no worker compensation, the NCAA doesn't promulgate or enforce any sort of health or safety standards so that football practices in 100-degree heat in Texas are conducted in a safe way. And we have, and as I said, we have coaches like Nick Saban making over $11 million a year and then complaining to Sports Illustrated that quote, guys are going to school where they can make the most money.

So we have this system that is exploitative and hypocritical. And it's why the NCAA lost that case in the Supreme Court. It's why Justice Kavanaugh wrote, "Tradition alone cannot justify building a money-making enterprise off the backs of student athletes who are not fairly compensated." And that is what this is ultimately about, is a system that is fair. And I certainly appreciate the difficulties of programs where there are non-revenue generating sports, and we have to think about that as well. I agree.

Part III

CHAKRABARTI: Jill, can you just, hypothesize with me for a minute? Because I take your point about the fact that St. Joe's is just different than some of the other big heavyweight colleges, D1 colleges that we've been talking about. Yet, if players would be allowed to be classified as employees throughout the NCAA would have an impact on St. Joseph's University. What do you think that impact would be?

BODENSTEINER: Yeah, that's a great question, Meghna, and I think let's just take my hypothetical softball pitcher who now gets let's just say a $30,000 scholarship per year to pay for her education. We would shift her to an employee, so we'd post the position, she would apply.

Assuming we hired her, we would then have to decide how much to pay her under, minimum wage differs state by state. So we'd look at Pennsylvania minimum wage. If we paid her minimum wage, she would make about $10,000 a year. Now instead of getting an athletic trainer and a built-in physical therapist and Rothman, the best orthopedic in the East Coast, instead of going, getting all of that care for free, she would then go file a work comp claim. And go through the work comp system.

I think when it comes to health and safety, people don't realize we all buy plans on our student athletes. They have deductibles. We pay out of pocket for their deductibles to ensure that there's no out of pocket expense for any varsity athletic related injury for any athlete. And that's across the country.

And then if something really bad happens, the NCAA has a catastrophic policy with a lifetime benefit up to $20 million. So this notion that we don't take care of the health and safety of our student athletes is also a bit overblown, but she would now go through the work comp system. She would have to pay FICA.

She would be taxed. Right now, her $30,000 is a qualified educational benefit under IRS regs, so she's not taxed on it. So we'd be paying FICA, we'd be paying, so we would not be able to give her 30,000. We would have to transition our financial aid and transition it to wages, and I just don't think that helps the majority of our student athletes.

Would we have to have fewer student athletes? Like right now we have 500 and we're only a 5,000-person campus, so 10%. I don't even think my HR could process 500 athletes, so we would probably have to look at dropping sports and taking away their financial aid, which I think is really disappointing. Because most of my student athletes, in fact, almost all of them, are there to get an education.

CHAKRABARTI: So Katie Van Dyck, respond to that, because again, I think this is the major concern from the colleges, like St. Joseph's, that aren't as huge. And not getting, I don't disagree with you about the vast sums of money that's flowing through the NCAA, but maybe they're not getting all of that. And yet would have, would suffer quite a significant impact if they had to classify their athletes as employees.

VAN DYCK: First of all, my thought when I hear this is, "Why do we have to look at this is taking things away from athletes?" Why is it that if suddenly this softball pitcher is getting wages instead of a scholarship, it has to be minimum wage? Why is it that St. Joe's can't continue paying the insurance premiums like a lot of employers do?

That's my first thought. My second thought is that, and I don't know the precise answer to this, but, and I am thinking about it a lot, but why is it that if we have changes in the law, those laws are changed to give something like an antitrust immunity to the NCAA so that it can limit player salaries?

Why aren't we talking about the outrageous coaches' salaries? Why aren't we talking about other gold plating at big universities with fancy stadiums and workout rooms and that sort of thing? These are serious questions that need to be answered, but the only way that administrators seem to be able to think about them is what are we going to take away from the athletes?

CHAKRABARTI: Jill, do you want to?

BODENSTEINER: Yeah. I think Katie and I are getting to common ground here, which is some sports at some institutions are different. And I think that's the answer. And ironically, the way we got there is through the de facto antitrust exemption. In other words, the Football Players' Association and the NFL have collectively bargained the young men out of the NFL until they go to three years of college.

And so thanks to their de facto labor exemption from antitrust, they have forced individuals interested in playing football into going to college. And the same was true with basketball. It's getting a little more open now with overtime and in different opportunities. But so I think those facts alone are getting us to the common ground, of my concern is just when people sweep this with one broad brush. Employee benefits, they wouldn't qualify for employee benefits at St. Joseph's University. So we buy an accident plan on them. They'd be part time employees who don't get employee benefits.

So we would continue to pay for an accident plan. But they are employees, so we're going to send them through the work comp system like every other employee, if that were to happen, and our cost of paying an employee is simply more than it is giving tuition. So that's going to be a shift.

I could go through the entire budgeting process, but I don't want to bore you. Tuition is a little bit different than paying wages, just the way it impacts the university budget. So I don't mean to sound like negative nelly, but there will be differences. The taxation on the student athletes isn't the same.

CHAKRABARTI: So --

BODENSTEINER: And if I --

CHAKRABARTI: No, go ahead, Jill.

BODENSTEINER: I just, I wanted to make one other point and not to sound like I'm continuing to be disagreeable, but the NCAA brings in $1 billion a year. They spend about $400 million of it running amazing championships across Division I, II and III, providing mental health resources, providing diversity resources and paying an enforcement staff.

So after that overhead, they're left with $600 million. Every penny of that comes back to the schools. So each year I get something called the academic enhancement fund that I used to pay for tutoring, that I used frankly, to have my international student athletes, 51 of them, to my house for dinner the other night, to get to know him.

We get a thing called the student athlete opportunity fund for low-income student athletes. We can fly them home for breaks. We can pay for dental work if their dental coverage isn't good enough. So that's how the NCAA extra money flows back to its institutions, is for us to pour right back into our student athletes.

So salaries are too high in college athletics, although I'll say I make less than or as you know what my other vice presidents do, but I can't disagree with you there. But to say that there are people in Indianapolis counting the money is not accurate either. We pour every single penny that we get from the NCAA back into our student athletes.

CHAKRABARTI: Okay. I want to just take a step back here for a second and get our facts straight about the numbers. Because I realize that there have been several different sets of numbers that have been discussed. So Jill, I think the $1 billion that you just referenced was the fact that, what, in 2021 NCAA revenues had gone just over $1 billion dollars for the first time.

Is that correct?

BODENSTEINER: I think the confusion is college football playoff money does not go through the NCAA. So $3.3 billion is accurate, because that includes college football playoff, but the NCAA doesn't handle any money that all goes through the college football playoff. So the NCAA only makes its majority of money from championship tickets and the CBS March Madness contract.

So that is indeed just over $1 billion.

CHAKRABARTI: Okay, but the NCAA says that Division I athletics generated almost $16 billion in revenue in 2019. Is that revenue directly to the colleges?

BODENSTEINER: Yeah, a lot of it sure can be. So our little pile of revenue is made up of ticket sales, corporate sponsorships. We get a small media amount from the A10 conference.

And yes, some of that goes directly. Some of it goes to the conferences to distribute to institutions, and some goes directly to the NCAA. So when I say just over $1 billion, that is the NCAA's actual revenue every year. You're not wrong on your other numbers.

CHAKRABARTI: Okay, but in terms of the value of Division I athletics to the universities, colleges and universities that are in D1, in total, it's about $16 billion.

So Katie Van Dyck. We have come to a place where I think there is some consensus here about the fact that not every university is the same in the NCAA, regarding athletics. And so I think that's part of the problem.

And I wonder if there's a way to think through a solution to that, because you're exactly right, in terms of there are those big colleges that are getting the bulk of the revenue from this. And their students, their athletes go on to maybe not graduate in the same rates that they're graduating from at St. Joseph's.

They aren't getting the same kind of education that their fellow students are, while they're spending almost all their time practicing and playing. And in fact, I was thinking back to that tape that we played from Jack Swarbrick, Vice President at Notre Dame, when he testified in front of Congress this week.

And he says these students get admitted under the same standards, they're educated under the same standards, and they learn under the same standards. We just know that's, I would say that's somewhat delusional, because I think there's enough evidence that shows that athletes are not admitted to universities under the same standards at all.

But my question, is there a way to look at the true source of the problem? The universities that are the biggest in the NCAA, in terms of athletics. And fashion regulation specifically around them, while also protecting smaller schools, let's say?

VAN DYCK: That's a great question, and that may be what's necessary, but I hesitate to say yes, outright, because you are still creating unequal treatment of athletes. It's based on the sport they play. And so maybe it is true that football and basketball need to be treated differently because of the expectations that are placed on those students.

But I hesitate to just agree without that outright, because I would want to see what kinds of hours a student athlete in a non-revenue generating sport is spending on school versus their sport. Because that is, I think, what is really at the heart of this issue, is this sort of exploitation that we see in the big revenue sharing sports where an unequal power, inability to unionize, travel expectations.

With the new Big Ten, the ACC commissioner just said that students on the basketball teams at Stanford and Cal are going to have to travel to the East Coast four times a year within a basketball season. So these are really serious issues that we need to think about.

And think about why are we having this sort of consolidation of power in the first place?

CHAKRABARTI: Jill Bodensteiner, I'd like to ask you for a moment if you can take off your AD's hat from St. Joseph's, okay? And just put on your, I presume, just lover of athletics hat. When we're thinking about the athletes who are playing in the schools that have that 40% graduation rate that Katie mentioned earlier, whose coaches are making $6, $7, $8, $9, $10 million, who are the people who are making it possible for those TV contracts that deliver billions to some of the big NCAA Division I schools. You can't possibly say that this is a system that's fair to those athletes, can you?

BODENSTEINER: No, I don't know if fair is the right word, but I think, I've been following very closely with the Knight Commission says and they said it's time to peel off football, right?

It's become a different entity. Because of that collective bargaining agreement that I mentioned. It's, some would say, it's become a semi pro league. And I think what I fear is happening and look, I'm in the territory here with Lehigh and Lafayette and the entire Patriot League and we're in a league with Fordham and Dayton and Loyola Chicago is just to say to people, and if my only point that anyone takes away from today is college athletics is broken and parts of it need to be fixed.

But let's not presume that the 300 schools that are not in the Power Five are as broken as the rest. And I hope I was able to make that point today. And I think, Katie, I totally understand your point. So I think the Johnson factors are one thing. Does my track athlete look like an employee under the FLSA, under the Johnson factors, just the same as a football player at Penn State?

I'm not sure. I don't think so. But then I get to, does my track athlete who generates zero revenue and who we spend an enormous amount investing in and literally generate zero revenue, does he look like the Penn State football player from a revenue perspective? And that's where I think the solutions need to differ.

CHAKRABARTI: Well, Katie, last question goes to you. We've just got about a minute, less than a minute left. I'm not sure Congress is the best place for this problem to be solved. Wouldn't it be better if the NCAA realized that the heat's only going to get further turned up? That they can't go on and keep, chewing up and spitting out these young people for the sake of billions of dollars and do something to regulate their own practices.

VAN DYCK: And maybe that is the solution, and what's difficult there is that as long as these college athletes aren't treated as employees, the real problem is they'll never have a chance to improve their conditions.

CHAKRABARTI: Because they don't have the law on their side. I gotcha.