Toward Basic Rights for College Athletes

A single weekend has changed the landscape in college sports. At the University of Missouri, where students had been protesting racial slurs and deprivations for more than a month, more than 30 black players announced a football strike on Saturday. On Monday both the campus chancellor and the university system’s president resigned. This swift coup demonstrated a potential for moral and financial power in concerted action by college athletes. The brief Missouri strike raises the prospect that similar tactics could be put to use by college athletes in an uphill struggle for their basic rights.

The moment for such a push may not be far off. Public support for the NCAA has declined in recent years and, what’s more, the current system has been the recipient of some less-than-indulgent court rulings. In August, the National Labor Relations Board overturned an earlier decision that would have allowed Northwestern University football players to vote on forming a trade union. Relieved NCAA officials cheered “the right call,” but the NLRB pointedly reserved judgment about whether college players should be legal employees, stressing that jurisdiction was declined largely because labor law does not apply to the many public universities competing with Northwestern in Big Ten sports. The NLRB deliberations raised a startling prospect: that college athletes could achieve union rights even while being denied the ordinary ones that most Americans hold individually, such as the right to seek compensation for work, something NCAA rules strictly forbid.

In September, NCAA lawyers won a mixed reprieve on its rule that college players must forever surrender any right to compensation from sports merchandise bearing their names and images. In the landmark O’Bannon case, the U.S. Court of Appeals for the Ninth Circuit did find the NCAA too restrictive under antitrust law, but the decision overturned a lower court’s corrective order mandating that new earnings be limited to $5,000 per player per year and be sequestered until graduation lest the extra money interfere with an athlete’s studies. While deferring on the question of whether athletes can receive any compensation beyond the costs of attending school, the judges opined that “courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules.”

College administrators are preparing reluctant lines of retreat. Notre Dame’s president John Jenkins told The New York Times that Notre Dame would support changes in NCAA rules to allow athletes to sell their autographs or otherwise make money of their fame—provided that Notre Dame was not involved. “That seems to be where we are going,” he said. Similarly, the Pac-12 has proposed an amendment allowing players to pursue business opportunities so long as they do not identify or market themselves as athletes.

Disputes over money are straining the NCAA’s unity. Early this year, the five major sports conferences (the Atlantic Coast, Big Ten, Big 12, Pac-12, and Southeastern) obtained “autonomy” to promulgate rules that would permit a modest cost-of-living scholarship raise for athletes. These five major sports conferences own the new football playoff system, reaping already an extra $500 million above their $2 billion in annual television revenue. They share none of this aggregate bonanza with the NCAA or its thousand member schools. For now they do let the NCAA collect television’s $770 million annual payment for March Madness, which supplies nearly all NCAA income, but leaders of the five conferences raised a veiled threat to leave and take the basketball tournament with them.

State lawmakers, meanwhile, have stretched in vain to devise legal reinforcement for the economic constraints imposed by the NCAA’s compact among member schools. In 2014, when the NCAA suspended star running back Todd Gurley for four games for selling his autographed jersey, Georgia legislators channeled popular fury. “It hurt our season,” objected Representative Barry Fleming, introducing a criminal bill to incorporate NCAA rules indirectly by scapegoating any sports agent who “entices” an athlete to break them. Fleming lamented that Gurley’s mother “didn’t have funds to properly repair the roof on the trailer she raised him in,” but his bill sought recompense only for Georgia. The “Todd Gurley Law,” approved overwhelmingly in May 2015, authorizes the state to prosecute and sue an offending sports agent for the “loss of scholarships, loss of television revenue, loss of bowl revenue, and legal and other fees…” Although this untested recourse may be wildly impractical, and unconstitutional, the exercise allowed lawmakers to express their frustration with the NCAA.

Pressure has exposed cracks in the NCAA’s professed devotion to the welfare of college athletes. Under prodding from President Theodore Roosevelt, colleges formed the organization in 1906 with a mission to curtail severe and mortal injuries among football players. Even so, defense lawyers filed a blunt disclaimer in wrongful death litigation two years ago: “The NCAA denies that it has a legal duty to protect student-athletes.” This ongoing case arose from head-on “Oklahoma” tackling drills at Frostburg State University in Maryland, during which co-captain Derek Sheely persevered through three days of wooziness and bleeding ear canals before he collapsed to die of brain trauma. Sheely’s parents appealed for an NCAA investigation into possible negligence or worse, but the NCAA closed ranks with Frostburg State. The NCAA’s president Mark Emmert did apologize to U.S. senators in 2014 for “a terrible choice of words created by legal counsel to make a legal argument,” and he emphasized the NCAA’s “clear, moral obligation to do everything we can to support and protect student-athletes.” Yet lawyers continue to resist discovery motions for NCAA communications with Frostburg State about Derek Sheely, arguing that disclosure “may be harmful to the NCAA’s legitimate business interests.”

These business interests remain foreign to the association’s public stance as a tax-exempt nonprofit service for college athletes, chartered to enhance their education. Less-than-lofty reminders of this conflict, such as semi-literate players, drive the NCAA to acquire—and major sports schools to offload—more authority over admissions and other academic standards, even though this function has pushed athletic regulators into the faculty domain. The NCAA juggles conflicting roles in the wake of egregious revelations at the University of North Carolina, which has admitted that some 3,100 students enrolled in phony “paper classes” and 560 forged grades aimed to keep UNC athletes eligible between 1993 and 2011. While reserving judgment and punishment of UNC in the four-year-old scandal, the NCAA is simultaneously a co-defendant with UNC in a multi-million-dollar class action filed by former UNC players who allege educational fraud. NCAA lawyers contend for a notion of academic guardianship short of responsibility, submitting in U.S. District Court “that the NCAA did not assume a duty to ensure the quality of the education student-athletes received at member institutions.”

Sports schools debate vague educational improvements. The PAC-12 is circulating a resolution “to establish a contiguous eight-hour period between 9 p.m. and 6 a.m. where athletic activities cannot be required,” which, if passed by the Autonomy Session at next year’s NCAA Convention, would prescribe a sleep break in the grueling sports regimen. One committee proposes to consolidate the many rules about academic misconduct at “one location in the Division I manual.” Another reform would elevate boilerplate language asserting that sports are “a vital component of the educational program and athletes shall be an integral part of the student body.” Beneath this rhetoric, sports schools have rushed to build lavish academic facilities reserved for athletes, such as Texas A&M’s $27 million Nye Center, UNC’s $30 million Loudermilk Center, and Oregon’s $41.7 million Jaqua Center, where tutors accountable to the athletic department supervise a growing portion of the curriculum. As demonstrated by UNC’s track record, this separated sports academy can subject college players to a tragic parody of education, worse than a Division I football team coached by biology professors.

"I think we recognized that all of my football players are at-risk," Notre Dame coach Brian Kelly admitted of their academic well-being, “all of them—really.” He cited the demands of travel and nonstop training—“playing on the road, playing night games, getting home at 4 o’clock in the morning.” Still, somehow, only one idea provokes a battle cry to defend academic integrity. A right for athletes to seek fair monetary compensation would risk “Armageddon,” as Notre Dame president Jenkins put it.

“That’s when we leave,” he told New York Times reporter Dan Barry. “We will not tolerate that.” He vowed instead to collapse the entire Notre Dame sports machine into sandlot club teams. Shrewd observers have suspected a brazen strategic bluff, but Father Jenkins marshalled ethical and religious defenses grounded in his training. “I don’t think there’s a compulsion,” he said, “or some demand of justice.” He dissected a published charge that NCAA schools violate basic rights of their athletes (disclosure: specifically mine in The Atlantic), and found it “a little overheated.”

“So the thesis is, we exploit these young people for financial gain,” Jenkins began.  “Let’s just think about that.” He said Notre Dame takes money from its high-revenue football and basketball teams “to help soccer players play soccer, help fencers fence, help swimmers swim.” This benevolent practice fits the “essential character” of education. A diversion of funds does take place, he concluded, “but that doesn’t seem to be exploitation.”

Aquinas and other theologians would look deeper. Only a tiny piece of captured sports revenue goes to the less marketable athletes. The bulk of it raises a golden pyramid in the sports establishment for head coaches, assistant coaches, broadcasters, strength coaches, advertisers, recruiters, builders, administrators, tutors, and so on. A secondary subsidy gives the facilities and non-student workers in money-losing sports a respectable share of the university brand, such that Florida paid its volleyball coach nearly $365,000 in 2009. In context, a noble motive to help swimmers and fencers must be weighed against the underlying conduct toward revenue-producing athletes. Schools pursue an aggressive commercial business outside the classroom by stripping the core talent of basic rights that other citizens take for granted. Indeed, NCAA rules forbid college players to seek any material reward, however slight, for athletic value, condemning their enterprise as uniquely unethical.

NCAA officials maintain that economic constraints on college athletes are vital for their own well-being and academic success. Emmert’s 2014 testimony to U.S. senators included an argument to this effect:

Prominent economists, on the other hand, argue that big-time college sports are a textbook illustration of collusion to rig the labor market against the interest of those athletes. Such arguments put academic leaders and NCAA officials on notice that they may yet have to answer for unjust behavior. Gifts to needy athletes become far less righteous when extracted from others by fiat. If a charitable donation were atonement for ill-gotten gains, every thief would enjoy a handy alibi, and FIFA’s soccer executives would not be facing indictment for misappropriated funds.

Yet many outsiders of good will bridle at the prospect of a right to earn money for college athletes. Some fear selfishly that pay would threaten the collegiate sports they enjoy. Others cling to Socratic nostalgia, sensing that paid players would exacerbate sports greed that never should have taken hold at universities in the first place. College leaders promote both these apprehensions by classifying the college player a “student-athlete” of compound nature, fused together for a highly specialized purpose. Accordingly, the NCAA insists that no one can be eligible for pay and remain “first” or “primarily” a student, nor can any true student be an employee. This mantra defies reality along with common sense. When James Franco enrolled at UCLA while working on the set of Spider-Man 3, no one called him a “student-actor” to confiscate his income so that he could focus on schoolwork.

Franco is unusual as a public figure, but multiple roles abound on every campus. Of roughly 20 million undergraduates in the United States, 4 million have full-time jobs on the side, and 10 million more work part-time in every conceivable occupation. All these students and their teachers are charged to uphold academic integrity in class regardless of the separate responsibilities they manage elsewhere. Outside employment is neither rare nor taboo, which leaves the NCAA’s “student-athlete” regimen an outlier from any norm. Its hybrid pretense harms athletes on both fronts, reducing them to jock status in academic life and pupil-serfdom in commercialized sports.

Behind the calls for reform is moral clarity. It starts with the recognition that the NCAA’s economic restrictions on college athletes are bogus, without justification in law or principle. This is the thrust of an ongoing lawsuit filed by the antitrust lawyer Jeffrey Kessler. If he wins, most colleges would scarcely notice, because they host humble but spirited games without scholarships or television contracts. The major sports schools will face massively difficult choices, however, in proportion to the cumulative distortion of their sports business. At least for a while, it will hurt for them to prioritize fairness over convenience and temptation.

Several forces could combine to create needed change. Ironically, the NCAA could come apart in ugly fights over skewed largesse. College players themselves, following the breakthrough example at Missouri, might devise symbolic protests. The courts, or Congress, eventually could confront the NCAA's teetering hegemony. And colleges could set aside their self-interested bromides to launch a free-ranging inquiry on the relationship between education and the sports phenomenon on campus. No one has proved how or whether those two worlds can be made compatible, but intellectual honesty could light a better path.