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Patrick Hruby

A Doctorate in Misdirection

Pac-12 commissioner Larry Scott is purposefully missing the point of the college athlete unionization argument

Sports on Earth

Great news: Pac-12 conference commissioner Larry Scott is now a sports columnist. Well, sort of. Last weekend, Scott published a piece in USA Today calling potential college athlete unionization — and the recognition of college football players at Northwestern University as school employees — the “wrong prescription for college sports.”

Given that Scott is new to this, I decided to give his work a proper fisking edit. Here goes:

The decision last week by a National Labor Relations Board official in Chicago to upend collegiate athletics by characterizing Northwestern University’s scholarship football players as “employees” …

Oops. NLRB regional director Peter Sung Ohr did not “decide to upend collegiate athletics.” He ruled that scholarship football players at Northwestern qualified as employees under the common law definition of the term, and he did so based on testimony and evidence. Which is his job.

… is a terrible idea that will do nothing to improve college sports and may well destroy them.

Actually, the only thing the NRLB ruling threatens to destroy is amateurism, which is the philosophical underpinning/justification for the cartel economy of college sports — and not the same thing as college sports themselves.

Yes, those are strong words. And let me be clear — I am not defending the status quo. The Pac-12 Conference, of which I have been commissioner since 2009, along with other conferences around the country, have been pressing for NCAA reform that would reflect the evolving needs of student-athletes, allowing for increased academic support, improved student-athlete health care, and enhanced athletic scholarships up to the full cost of attendance. I am confident reform is coming within the NCAA in the next few months, and soon universities will be allowed to provide this additional support for student-athletes.

Let’s see: Larry Scott is in favor of continuing a system in which a group of schools are allowed to collude and conspire (via NCAA amateurism restrictions) to price-fix both direct (scholarships) and indirect (everything else, from tattoos to loans to money handshakes) compensation for one group of service providers (athletes) but for not anyone else (athletic directors, coaches, conference commissioners), punishable by group boycott (ineligibility and sanctions). And his suggested reform is a slightly more generous price fix — more tutors and health insurance; bigger stipends — that maintains cartel control and continues to deny a single group of citizens basic economic rights and protections ranging from worker’s compensation to legal representation.

But no, he clearly is not defending the status quo.

But there is absolutely no question that turning students into employees would take us in precisely the opposite direction that we need to go.

True! Provided that the direction we need to follow is the same one the NCAA already has been following for decades.

The challenge collegiate sports faces in an era of expanding popularity is to ensure that revenues are used for the benefit of the universities and their students …

There is absolutely no question that having rights and protections, including the ability to negotiate for workplace conditions and compensation free of collusive interference, would benefit college athletes — just look at what those things do for people like Larry Scott, who earns a tidy $3 million annually.

… and to ensure that the paramount role of “student” in “student-athlete” is not obscured. We need to safeguard and strengthen our commitment to academics to help find the right balance, not throw in the towel and characterize students as employees.

This platter of verbal mush only makes sense if you assume that:

1. The term “student-athlete” means something beyond what it actually is, a semantic legal dodge invented by the NCAA in the 1950s to avoid paying workers’ compensation to injured football players and/or the relatives of dead football players;

2. Both campus jobs and all other commercial activity related to one’s talents and abilities are inarguably and irreducibly antithetical to being a student and getting an education, but only for college athletes, and not everyone else ever who has managed to work, make money and go to school ALL AT THE SAME TIME.

3. Georgetown University’s employment of yours truly in the school’s campus bookstore during my freshman year constituted some sort of unexplained and unsubstantiated — but deeply disturbing! — throwing in of a symbolic towel on the promise and mission of American higher education.

We believe that the NLRB official’s finding that student-athletes on scholarship are not primarily students is profoundly wrong …

Scott believes. Great. I believe in Santa Claus. How about some evidence? You know, like the evidence that Ohr based his ruling on?

Here’s the common law definition of an employee: a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. Services. Contract. Control. Payment. Pretty simple, right?

Now consider the facts of the case:

* Northwestern’s football team generated revenues of approximately $235 million between 2003 and 2012, plus the “immeasurable positive impact to Northwestern’s reputation a winning football team may have on alumni giving and increase in number of applicants for enrollment at the University”;

* Northwestern football players spend 50 to 60 hours a week on football-related activities during training camp; 40-50 hours a week during the season and before bowl games; and up to 20-25 hours a week during spring football and summer workouts;

* Northwestern football players are required to live in on-campus dorms as underclassmen; upperclassmen may live off campus, but only if head coach Pat Fitzgerald reviews and approves their leases. They are prohibited from swearing and from denying coach “friend” requests on social media, so that coaches can monitor their personal communications. They are subject to drug testing, and have to give their coaches detailed information about the cars that they drive. They can’t get outside jobs or speak to the media without athletic department approval. Nor are they allowed to profit from their image or reputation — for example: selling autographs and gear, and/or trading them for tattoos — but are required to sign a release that allows both Northwestern and the Big Ten to use their names, likenesses and images for any purpose. During the regular season, the players must wear a suit to home games and team-issued travel sweats to away games, and also stay within a six-hour radius of campus prior to all games. They’re even forced to give their flight itineraries to their position coaches when flying home to visit family;

* Northwestern football players are recruited for their football skill — duh — and sign a contract with the school spelling out the terms and conditions under which they receive scholarships for tuition, room and board worth as much as $76,000 a year.

Ohr’s ruling also makes it clear that, as I’ve written before, football and school have nothing to do with each other. Coaches are not professors. Players do not receive academic credit for games, film study, weight training or anything else related to football. Regardless of major, they are not required to play football to obtain a degree. They may learn life lessons in character, dedication, teamwork, and so on — life lessons that also can be learned via, you know, living — but as Ohr notes, none of that shows that “their relationship with the employer is primarily an academic one.” To the contrary, football arguably interfere with academics. Take former Northwestern quarterback Kain Colter, who testified that: (a) both his coaches and his academic advisors discouraged him from enrolling in a required chemistry class for pre-med majors because it conflicted with morning practice; (b) he ultimately switched his major from pre-med to psychology because it was less demanding.

Does Scott address any of the above? Does he refute any of the above? No and no. But gosh darn it, he has his beliefs. His convictions. Which might actually count for something — if we were debating religion, or whether Krispy Kreme tastes better than Dunkin’ Donuts.

Also, using the word “profound” doesn’t actually make something, you know, profound.

At Pac-12 universities, which are some of the most prestigious academic institutions in the world, student-athletes represent the intersection of academic excellence and athletic achievement, graduating with their fellow students and winning the most NCAA titles of any conference.

This has nothing to do with the question of whether one group of citizens should be denied the same rights every other group of citizens enjoys because somebody somewhere invented a hyphenated word.

Recent Pac-12 football student-athletes Andrew Luck of Stanford and Matt Barkley of the University of Southern California exemplify this balance, opting to delay turning professional to achieve their degrees and reap the full value of their educations.

And if Luck and Barkley had enjoyed economic rights — perhaps even a negotiated salary, or the ability to cash in on shoe sponsorships like their schools and coaches — that would have prevented them from achieving their degrees how? If anything, NCAA amateurism discourages athletes who need money (and could be receiving it from happy fans and boosters in a free marketplace) from staying in school. See Ben McLemore.

And beyond a small handful that turns pro, the vast majority of our 7,000 Pac-12 student-athletes are on our campuses to get the education and experiences that will prepare them for those careers. The notion that they see themselves as employees rather than students is laughable.

For the 1,000th time: The vast majority of all college students will not play major league sports, either, yet only athletes are being denied the basic rights and protections that would allow them to realize the market value for their talents during their prime earning years. Why?

Also, the NLRB was not asked to rule on how college athletes see themselves. It was asked to rule on the question of Northwestern University football players qualifying as employees under the common law definition of the term. The only laughable notion here is Larry Scott’s ignoring of that fact, the better to napalm a series of rhetorical strawmen.

Right now, for technical legal reasons, the ruling only applies to the sport of football and private universities, but the misguided thinking that produced it might be applied to other sports and public universities as well.

How, exactly, is it misguided? Oh, right: Scott doesn’t say. Probably because that would mean addressing all of that pesky evidence.

And because the “revenue” sports at most universities support the “non-revenue” sports – including sports such as baseball, soccer, softball, volleyball, swimming, and tennis (which I played while a student at Harvard)

Excuse me! A Harvard man! In that case, I’m pretty sure Scott knows what tautological reasoning is, and why he’s guilty of it. Also: is putting non-ironic air quotes around uncomplicated terms that everyone understands without said air quotes a Harvard thing?

— the entire world of intercollegiate athletics as we know it could shrink dramatically because of a lack of resources.
Women’s sports could be hit particularly hard, which would be a real travesty given all that we have achieved over the last 40 years since the advent of Title IX, especially because it is unknown how “employee” status would intersect with Title IX.
With this demise would come the loss of opportunity for thousands of students who, without athletic scholarships, might never be able to attend college. At the Pac-12 alone, two-thirds of our students-athletes receive athletics aid across as many as 36 varsity sports. The loss of any athletic program would be a blow to the valuable access and opportunity athletics afford to many students on our campuses.

Translation: If amateurism goes kaput and the very best high school football and basketball players are free to entertain competitive bids for their services from schools — a freedom already enjoyed the very best high school math and science prodigies — then their services likely will cost more to obtain than the current value of a scholarship, the price of 10,000 recruiting postcards/text messages and whatever’s being offered under the table. In turn, said cost escalation means no more money for women’s crew. You maniacs! You blew it up!

Frankly, this is b.s. As I’ve written before:

Just as dumping the reserve clause didn’t destroy minor or major league baseball, nixing amateurism hardly means the inevitable death of collegiate soccer and cross-country, let alone the scholarships that sometimes come with them. To the contrary, evidence suggests that schools in a post-[amateurism] world still will be able to afford non-revenue sports, and also want to do so.

How and why? Read the above link — and also this — for detailed answers. Back to Scott.

I understand that some people are frustrated by what they perceive to be a slow pace to NCAA reform. But classifying students as employees of their universities is the wrong prescription for addressing the evolving needs of student-athletes and improving intercollegiate athletics.

Another flaming strawman. Nobody — except maybe major conference commissioners and athletic directors who would like to maintain as much economic control and power as possible — is frustrated by their “perceptions” of a “slow pace” to “NCAA reform.” (Did I get that Harvard air quote thing right?) Amateurism’s opponents are frustrated by the stark, undeniable realities of a fundamentally corrupt and unfair system. Big difference. Moreover, the problem with college sports isn’t a well-meaning failure to address college athletes’ needs. It’s the stubborn, willful and ongoing denial of their rights. Much bigger difference. If Dr. Scott can’t get the diagnosis right — if he can’t differentiate a freckle from melanoma, or a paper cut from a gunshot wound — then never mind writing guest columns. Who is he to judge prescriptions?

Read the original article at Sports on Earth