Former N.C. Supreme Court Justice Bob Orr doesn’t want to touch the hot topic of paying college student-athletes. But Orr supports one change that could help star players make money from their skills before they turn pro.
The jurist relies on one of the most important pieces of North Carolina’s fundamental law to make his case.
“I am absolutely confident that the NCAA and certain member institutions within the system who don’t want to see change, and who don’t want to share the gold that the golden goose has delivered, all want us to be talking about paying players,” Orr said Jan. 10 in Raleigh. “They want us to talk about paying players because basically that’s kind of an unpopular position that those of us in the reform movement have advocated.”
“They want us to become mired in the quagmire of compensation models that pit men’s sports against women’s sports, major-revenue sports versus Olympic sports, benchwarmers versus all-Americans, small schools versus big schools — all of the permutations of compensation models that will lead the discussion in circles, provoke controversy and litigation, and ultimately forestall any significant change.”
Orr delivered those remarks to a legislative commission studying fair treatment of college athletes in North Carolina. It’s a topic that has interested Orr since he started representing UNC-Chapel Hill football players in legal disputes involving alleged NCAA rules violations.
The retired justice admits he has no easy answer that would lead the compensation discussion out of the “quagmire.” Yet he offers “one fairly simple and straightforward reform” that could put more dollars in some players’ pockets.
“That simple proposal is to stop punishing college athletes from benefiting financially from their skills and success in a particular sport,” Orr said. “This basic concept can be founded on what I think is one of the truly important provisions in our own state constitution.”
That important provision sits near the beginning of the N.C. Constitution, tucked within Article I, Section 1 of its Declaration of Rights. Among the “inalienable rights” guaranteed to North Carolinians are life, liberty, and the pursuit of happiness. In addition to these rights familiar to all schoolchildren, Article I, Section 1 also guarantees people the right to “the enjoyment of the fruits of their own labor.”
Part of the state constitution since 1868, that provision “was obviously grounded in the history of an enslaved people obligated to work for the benefit of others but unable to benefit for themselves,” Orr said. In the intervening 150 years, the provision has helped protect North Carolinians from “government overreach in the regulatory sphere.”
Now Orr sees an application for “the young men and women working for their respective schools in the big-time business of college athletics,” he said. “Shouldn’t these athletes be able to enjoy the fruits or benefits of their own labor without being punished for receiving those benefits?”
Take, for example, Trevor Lawrence, the 19-year-old quarterback who just led Clemson University to a national football championship in his first year in college. “How much would his presence be worth on another college campus, and how much would the free-market system pay him to make that move?” Orr asked.
“But not only is that type of compensation forbidden and punishable by being forever banned from college sports, but the more mundane types of benefits — from a hometown fan treating him to dinner, to opportunities to make a little extra money doing ads for Uncle Moe’s Used Car Sales — [are] forbidden and punishable,” Orr added.
“The infamous NCAA ‘impermissible benefits’ rule would immediately kick in, and Lawrence or any other college athlete given such a monetary opportunity would find himself or herself ineligible to participate in college sports, lose their scholarship, and perhaps have to leave college if they came from a low-wealth family.”
No other members of a campus community — not chancellors, coaches, research professors, or student “musicians, actors, writers, programmers” — face the same limits on making money from their specific talents, Orr said.
The former justice surmised that it would be hard to come up with a “fair, workable” compensation system without ending the current prohibitions. “When the punishment of ineligibility for receiving financial benefit is removed from the equation, and college athletes and their representatives can be treated like everyone else in the system, then solutions for compensation can be reached.”
It’s clear Orr’s proposal would not address all concerns. One easily can picture a “hometown fan” giving a star player $1,000 to cover the cost of a $20 meal. Or a professional sports agent fronting Uncle Moe $50,000 to funnel to a college athlete who’s a prospective pro client. Even those open to Orr’s suggestions might want to limit that type of dubious activity.
In addition to those potential abuses, North Carolina could disqualify its schools from competing against national peers if it adopts state-level reforms that run afoul of national NCAA guidelines.
Still, it’s good to see at least one participant in the compensation debate citing basic constitutional principles. All North Carolinians benefit when state government strives to help more residents enjoy “the fruits of their own labor.”
Mitch Kokai is senior political analyst for the John Locke Foundation.