Bigfoot, the Loch Ness monster, and the NCAA power-conference “student-athlete” share a common trait. They’re all mythical creatures.
That is essentially what Peter Sung Ohr, regional director for Region 13 of the National Labor Relations Board, declared last Wednesday in a landmark 24-page decision in which he ruled that Northwestern football players are employees of the university and thus should be granted the right to unionize. Ohr dismissed the specious principle on which the entire mirage of big-time college football and college basketball is based: the idea of the student-athlete.
Ohr legally and methodically spelled out what most of us who love college sports already knew deep down — that watching the NCAA Tournament or a Southeastern Conference football game is like going to the movies. It requires a willful suspension of disbelief for a few hours.
There are student-athletes in the Ivy League, but if you’re playing football or men’s or women’s college basketball at the highest level, you are an athlete-employee-entertainer-student, in that order.
Between Ohr’s ruling and the pivotal Ed O’Bannon class-action lawsuit contesting the use of college athletes’ likenesses without compensation, the jig is up for the NCAA. The organization can either cling to its Byzantine rule book and lawyer up to maintain the fantasy land of the current model, or it can adapt and evolve.
That means compensation beyond the scholarship for the employees, anathema to those who worship the false idol of amateurism.
How to pay college athletes in a legitimate fashion is a complex question with a lot of potential pratfalls. The simplest solution for the colleges and universities might be to let someone else do it.
If someone is willing to pay for Johnny Manziel’s autograph, then let him take the money and keep his eligibility. If Nike or Adidas wants to use the next Jabari Parker or Skylar Diggins as an endorser and pay him or her as they do the basketball coaches who have shoe contracts, go right ahead. If a college lacrosse star can get a stick endorsement deal, good deal.
Players whose jerseys are being sold without their name — does anyone in the college sports industrial complex really think someone bought a No. 2 Texas A&M jersey not knowing it was Manziel’s? — should get a cut of the licensing action.
This could be negotiated on an individual basis or collectively bargained by entities such as the College Athletes Players Association, the group that filed the petition with the NLRB on behalf of the Northwestern players.
The hypocrisy of the current system is maddening. You have coaches/feudal lords such as Nick Saban (Alabama football) and Mike Krzyzewski (Duke men’s basketball) making in excess of $7 million a year. You have million-dollar athletic directors. You have billion-dollar television contracts for the NCAA Tournament and the new College Football Playoffs.
Then you have kids who can’t benefit from their own success and can only get money outside of their scholarship funneled to them by shady boosters and runners and agents who cling to them like barnacles to a boat.
In his ruling, Ohr said that Northwestern football, far from a powerhouse program like Alabama, Ohio State, or Texas, made $76 million in combined profit from 2003-12. By comparison, Ohr said that a football scholarship at Northwestern was worth $61,000-$76,000 a year.
The regional NLRB ruling doesn’t specify pay-for-play, only that a union could collectively bargain at a private university such as Northwestern or Duke or Boston College. (Collective bargaining at state-funded universities is subject to state law, not the NLRB.)
But it does apply pressure to the NCAA.
“I do think this is a way of putting pressure on the NCAA,” said New York University law professor and labor law expert Samuel Estreicher. “There is a policy for public pressure on the NCAA to allow compensation, which they won’t allow, or flexibility on hours they devote to the team, or a compensation fund if people are injured. That may well be the ultimate objective, not collective bargaining, but applying a pressure point for leverage.”
Boston College professor of labor and employment law Thomas C. Kohler agreed. He said that the NCAA is looking more and more as if it’s caught “in a Pincer movement,” squeezed on one side by athletes and on the other by the power conferences that have hinted that if they’re not allowed to further compensate players under NCAA rules, they might just secede from the NCAA and make their own rules.
“No other university system in the universe has sports the way we do,” said Kohler, who has taught overseas. “You go to a European or a Japanese university, you don’t see the stadium and the big basketball arena like us.
“I wonder if college sports is in the process of collapsing under its own weight.”
The whole system is built on a fallacy.
The term “student-athlete” was never intended to be a virtuous expression of the collegiate athlete, but an appellation for legal protection.
It was coined by the NCAA back in the 1950s to prevent the widow of a Fort Lewis A&M (now Fort Lewis College) football player who had died from a head injury from collecting workman’s compensation death benefits.
For “student-athlete” to mean what the NCAA wants it to, the “student” part would have to come first at all times. It doesn’t. Kain Colter, who was a senior on last year’s Northwestern team, testified that there were certain classes he was discouraged from taking because they conflicted with football practice.
“While the football coaches, and the Employer as a whole, appear to value the players’ academic education, it is clear that the players are controlled to such a degree that it does impact their academic pursuits to a certain extent,” wrote Ohr.
If this is happening at Northwestern, which has the highest graduation rate (97 percent) in major college football, imagine what is happening at the football factories.
The NCAA has to realize the winds of change are beginning to blow.
It can hunker down in its bunker mentality or seek higher moral ground and let the athletes benefit from the fruits of their labor.Christopher L. Gasper can be reached at email@example.com. Follow him on Twitter @cgasper.