Toward justice in college sports
If you were going to hold up a school as being exemplary in the way it puts athletics in, as they say, “the proper perspective,” Northwestern University would certainly be one you’d point to. For instance, although it lacks the kind of winning tradition — at least in the big-time sports — that other schools in the Big Ten can boast of, it proudly points to the 97 percent graduation rate of its athletes.
Yet buried in last week’s decision by Peter Sung Ohr, the regional director of the National Labor Relations Board — in which he said that the Northwestern football team had the right to form a union — was this anecdote about Kain Colter, the former Northwestern quarterback who is leading the union effort. In his sophomore year, dreaming of going to medical school someday, Colter “attempted to take a required chemistry course.” However, “his coaches and advisers discouraged him from taking the course because it conflicted with morning football practices.” Eventually, after falling behind other pre-med students, he wound up switching his major to psychology, “which he believed to be less demanding,” according to Ohr.
Ohr’s essential point was that unlike the rest of the student body at Northwestern, football players had little control over their lives. Their schedules were dictated by the needs of the football team. They had bosses in the form of coaches and other university officials who could fire them. They had to abide by a million petty NCAA rules, and they lacked many of the freedoms and rights taken for granted by students who didn’t play sports. They put in up to 50-hours a week at their sport — vastly more than is supposedly allowed under NCAA rules. But then, every school finds ways to evade those rules, whether they have athletics “in perspective” or not.
Anyone who cares about justice had to be encouraged by Ohr’s ruling. In outlining the many ways that Northwestern’s football players were primarily employees of the university, recruited to the campus to generate revenue, Ohr ignored the idyllic myth of the “student-athlete” and dealt in cold, hard facts. (“Student-athlete,” it’s worth remembering, is a phrase invented by the NCAA in the 1950s precisely to avoid having to grant workers’ compensation to injured college football players on the grounds that they fit the classic definition of employees.)
Having said that, it seems to me that both the fans and the critics of Ohr’s decision have been getting a little ahead of themselves. It is only one team at one school, and while I hear reliably that other teams at other schools are investigating the possibility of forming a union, we are years away from knowing whether a union would necessarily mean that players are eventually paid (as proponents hope) or that their scholarships will be taxed (as critics warn). Given the NCAA’s fierce resistance to anything that might dilute its power — or worse, give power to the athletes themselves — it is a certainty that Ohr’s decision will wind up in a federal appeals court.
The buzz over the union effort has also had the effect, at least temporarily, of distracting attention from other efforts that have the potential to upend the system even more radically. One is a class-action lawsuit that has been active for several years now, the O’Bannon case, named for Ed O’Bannon, the former UCLA basketball star. Although ostensibly about the licensing and image rights of former college athletes, it is aimed directly at the heart of “amateurism” that is the central rationale of the NCAA’s refusal to consider paying players anything beyond their scholarships.
Already, I’m told, the legal team driving the case is devising the means to pay players royalties and other compensation, which they will undoubtedly propose to the judge, assuming it goes to trial.
Meanwhile, lawyers on both coasts have recently filed straightforward antitrust class-action suits against the NCAA, arguing that universities and the NCAA simply lack the legal right to cap players’ compensation. When I asked Jeffrey Kessler, a New York lawyer who has spent years representing professional athletes, why he had taken on this case, he replied, “Our sense is that the world has changed so radically in college sports that even the most casual observers recognize that this is not amateurism. This is a gigantic business.”
Maybe that is what the Ohr decision really represents: a government acknowledgment that college sports is not what it once was and that no amount of NCAA propaganda can hide the money-soaked reality anymore. If judges come to these upcoming cases with the same lack of blinders that Ohr showed last week — if they view the cases strictly through the prism of the law rather than the gauzy sheen of amateurism — well, then, a union will be the least of the NCAA’s worries.
Joe Nocera is a columnist for The New York Times.