SLATE: The greatest play fake ever

At 6:11pm CT on the night of Sunday, August 9, 2020, Clemson quarterback Trevor Lawrence tweeted a call for the powers that be in college football to let the season progress, launching the #WeWantToPlay hashtag. That tweet resulted in a massive outpouring of “Yeah, buddy!” responses from a phalanx of sports commentators who generally have three things in common: a skepticism over the entire COVID pandemic, an overwhelming sense of entitlement to the free labor of college football players, and an annoying penchant for castigating fellow journalists and commentators who express doubt about the season by accusing them of “rooting for the virus”. Chief among them: a certain obnoxious jerk whose name we don’t mention around here, but it rhymes with Tray Clavis.

Several other big names, including Ohio State quarterback Justin Fields, hopped on the bandwagon, and the rout appeared to be on as far as Twitter was concerned.

Lawrence baited the hook perfectly, however. As the jerk fringe converged on the running back, Lawrence and Fields suddenly threw bombs. A tweet, graphically designed by Washington State defensive lineman Dallas Hobbs (in only 20 minutes!) and sent one minute after 11pm CT, suddenly put all those pundits in a bind: keep supporting #WeWantToPlay and simultaneously support the formation of an actual college football player’s association, or backpedal faster than a politician who totally misread the polling data.

This wasn’t an accident. Lawrence, Fields, Hobbs, Lawrence’s teammate Darius Rencher, Oklahoma State running back Chuba Hubbard, Oregon offensive lineman Penei Sewell, Alabama running back Najee Harris, Stanford defensive end Dylan Boles, and Michigan defensive back Hunter Reynolds had all convened on a Zoom meeting to craft their demands as a group.

Why? Because they saw the reaction to the #WeWantToPlay tweets and, as Boles told Yahoo‘s Henry Bushnell, “We felt like the media and the fans were kind of pitting the two movements against each other.”

Contemplate that. The 21-year-olds are fed up with the nonsense. They’ve got people pretending to care about what they want who are really just trying to sell their own narrative about COVID-19. They’ve got people calling for their season to be cancelled when that may not actually be the best move.

And while they’re taking their leverage and running with it, they’re also giving the chattering gasbags something to think about.

The reality is this: Lawrence is mostly correct. For a large segment of the college athlete population, the safest place for them to be is on campus — so long as classes are still being held online instead of in person. Some will argue that nobody should be on campus, but Lawrence’s objection to sending football players home is just as applicable to a regular student. The real issue is whether students can be convinced that being trapped in their dorm room for the entire semester is the right thing to do.

The one thing schools can’t get away with, however, is sending the regular student body home while keeping the athletes around to play football. That would utterly expose their status as essential employees, and the schools wouldn’t really have an argument against it.

It’s actually been a long time since a court case ruled on the question of whether NCAA athletes are employees or not. In 2019, a court ruled that athletes are not employees of the NCAA or the conference in which their team plays, but the suit did not actually name the school (USC) as a defendant. The 2014 Ed O’Bannon case was strictly about NIL rights, and did not address employment status.

In 2016, track and field athletes at Penn sued to be classified as employees but lost (Berger v NCAA); however, in a concurring opinion Judge David Hamilton noted that the case should be dismissed because Penn does not offer scholarships and track and field is not a revenue sport. That a football player at an FBS school might be an employee wasn’t an implication on Hamilton’s part; it was flatly stated in his concurrence.

State courts have ruled athletes are not employees for worker’s compensation purposes in the past, but there’s been no legitimate challenge to the employment status of college athletes on the federal level where an athlete has sued a school. That changed last year, when former Villanova defensive back Trey Johnson sued the NCAA and 22 schools in Pennsylvania, New Jersey, and Delaware. This suit was based on a former lawsuit, Livers v NCAA. Long story short, that case was dismissed with two different plaintiffs, but on procedural grounds.

During those proceedings, the presiding judge first refused the NCAA’s motion to dismiss, stating that there were enough facts on the table to hold a trial on whether the Fair Labor Standards Act applies; he also rejected a defense the NCAA has used repeatedly — that the tradition of “amateurism” defines and defends their position — in a separate motion. That’s big, and bolsters Johnson’s case.

We’ve gone on at absurd length here, and we apologize, but there’s a point to all this. Thus far, the NCAA has not yet had to defend itself in court against the charge of using student labor to make billions of dollars in revenue. This is one of the key aspects of the FLSA that the NCAA is desperate to avoid having heard in court, because there can be no reasonable argument that the act of recruiting football players to come to your school specifically in order to play football, which is indeed a business and brings in forty million dollars annually into your school’s coffers, is not “employment”.

Of course, the most important thing to note here is that as far as wages go, ruling football players to be employees is sort of a meaningless point. The value of a scholarship does in fact exceed minimum wage at basically every Division I school even if players have to work 40 hours a week 52 weeks a year. (They don’t, obviously.)

But once you’re legally an employee, the value of your work product becomes negotiable. You’re entitled to worker’s compensation, unemployment, and a host of other benefits and protections.

It’s vital to remember, faced with this, that the NCAA’s efforts to keep athletes from being deemed employees originally stemmed from trying to avoid those very things.

Whether Lawrence and Fields and friends will have a real impact on the way the NCAA goes about its business with athletes is an open question. But having names this huge signing onto this movement is going to at least make the needle quiver. It’ll be fascinating to see how this all plays out in the end, but there’s one thing about which you can be sure:

Trevor Lawrence isn’t going to be punitively benched for having the unmitigated gall to demand fair labor treatment, so this isn’t going away quietly.