Friday, March 28, 2014

Optimism and Pessimism (Mostly Optimism) About the Unionization of College Football Players

-- Posted by Neil H. Buchanan

Earlier this week, a regional director of the National Labor Relations Board (NLRB) issued a decision that could be the turning point in the relationship between universities and the athletes who represent them on football fields.  The director concluded that football players at Northwestern University (one of fourteen current members of the Big 10 conference) are employees of the university, and thus are eligible to hold a vote to form a union.  Although there are many miles to go in this legal marathon, this decision could end up changing everything in college sports.

There are, of course, a daunting array of legal questions that follow from this decision.  Some have straightforward answers, such as whether this decision (if ultimately upheld) would apply to athletes at state universities.  (No.)  Others are generating excited discussion among various groups of legal analysts.  My colleagues in tax law, for example, are already having a field day (no pun intended) discussing the many questions raised by the potential taxation of employee-athletes.

I might end up weighing in on a number of those legal issues in future posts.  For now, however, I want to think aloud about some of the implications, both positive and negative, of allowing college athletes to unionize.

Regular readers of Dorf on Law might recall that I have at various times expressed great skepticism about calls to pay cash compensation to college athletes.  Most recently, I wrote last December about the disturbing tendency among most observers to treat full-ride scholarships, including free room and board at top universities, as somehow worthless.  (Links to all of my earlier posts and columns about college sports can be found at the beginning of that December 5 Dorf on Law post.)

I also have criticized the overwrought claims about a "plantation mentality," and other inapt imagery, that others have used to attack the National Collegiate Athletic Association (NCAA) and its current policies regarding student-athletes.  That is not to say that I am in any way a fan of the NCAA.  Its procedures are often arbitrary and capricious, and it has if anything allowed far too much cheating to go unpunished in the interest of maximizing revenues.  (Star athletes get special treatment from the NCAA, when TV ratings are threatened.)

I am, in fact, overall rather optimistic about the possible effects of unionizing college football players and allowing them to bargain collectively with their universities.  A union could, and should, focus less on immediate big-money payoffs and more on matters that could actually improve the lives of all college athletes, especially later in their lives.  The Northwestern players' two main concerns "were better health care and limited practice hours."  If players were allowed to unionize, and if those two issues are what the new union puts front and center, that could be great news.  Despite my skepticism about other issues, I have always agreed that the players deserve to be provided with better health care and (especially) disability insurance, and that they should not lose their scholarships if they become injured (or leave the team for other legitimate reasons).

More importantly, the essence of my objections to pay-for-play have been predicated on the idea that athletes should actually be allowed to be students, rather than being encouraged to go for short-term cash.  Even though the evidence shows pretty convincingly that college is still a very good deal for scholarship athletes (with Northwestern itself leading the way with a 97% graduation rate), there is no doubt that too many college athletes -- almost certainly a small minority, but not a trivial one -- are not benefiting from the educations that they are supposedly receiving.

Of course, there is a possible paradox.  If a union succeeds in forcing universities to allow their athletes to become real students, then they might no longer be eligible to be unionized.  The director's ruling, notably, is based on the conclusion that the players are not "primarily students."  If they become students again, they would presumably be subject to earlier NLRB rulings that have prevented students from unionizing.

But we can put that aside for now.  A more pertinent question is whether a union would actually follow through on an agenda to reduce practice time and improve health care.  It sounds good now, but would a union really leave all of that money on the table, when the highest-profile athletes would be clamoring for million-dollar paydays while still in college?  Actually, I think that they might.

The best place comparison, of course, is the union that represents players in professional football, the National Football League Players' Association (NFLPA).  Although the NFLPA is much smaller (representing only 50-60 players on each of 32 teams, as opposed to the 90 or more college players on each of hundreds of teams), and its players are professional, there are plenty of similarities.  For one thing, the average professional career lasts only three seasons, meaning that the NFL (which some players say is an acronym for "Not For Long") employs its typical employees for shorter terms than do colleges.  Colleges do not have 14-year veterans, of course, but those guys are true outliers in the NFL, too.

And the good news is that the NFLPA, despite its many disadvantages vis-a-vis a league that holds an antitrust exemption, is fighting the good fight.  Most importantly, perhaps, the NFLPA is the reason that the league still has a 16-game season.  The owners have been trying for years to move to an 18-game schedule, but the players' union has resolutely refused.  Given that the NCAA has allowed colleges to go from 11- to 12-game seasons, and to add conference championship games, and now is adding a layer of playoffs (along with oddities like allowing teams that schedule games at the University of Hawai'i to schedule a 13th regular-season game), it is important to have a counterbalance against the economic pressure to physically exploit the players even more than they are already being exploited.

Moreover, the NFLPA has been the driving force in trying to get the league to deal with head injuries, fighting the causes and consequences of concussions and the dementia that has become epidemic recently among retired players of the 1970's and 1980's era.  Early indications from medical studies suggest that the head injury problem starts at the college level (and even before), and there is plenty of evidence that NCAA schools are not taking this seriously enough.  If the players' union pushes hard on that issue, it would have earned everyone's respect.

Note also that having an outside entity (in this case, the players' union) forcing all teams to adjust their practice times downward (and to protect players better than they do now) would have the effect of benefiting players without compromising competition.  That is, every individual team currently has an incentive to push its players harder, to try to gain a competitive advantage.  This inevitably pushes up the demands on the young athletes.  The union would solve that group action problem, allowing everyone to dial it back without fear of losing an edge.  (There are always temptations to cheat, of course, but the new norm would surely center around less practice time.)

So, there are some reasons to think that unionizing college football players could have some very good consequences, significantly improving the lives of the players, and potentially forcing universities to act more like universities than Fortune 500 corporations.  I have already noted one reason for pessimism, which is that the union could instead try to simply turn college football into a pay-for-play semi-pro league, with health concerns and education left behind.

Even if that were not to happen, however, there are other reasons for concern.  Although the reduction in practice times, and the increased attention to head injuries and other health issues, would be a plus for players without being costly to the universities, other goals of a players' union could end up inadvertently harming players, because of their inherent costs.  My preference, for example, would be that a football scholarship be irrevocable (other than for obvious reasons like flunking out) for four years, and that the players whose playing careers forced them to reduce their class schedules would have their scholarships extended for one or two years to allow them to graduate.

That requirement, along with other player-friendly initiatives (especially university-paid disability insurance) would increase the per-player cost of running a football program.  This could have the unfortunate effect of contracting the size of football squads, which could then have the effect of causing fewer players to play more minutes (and to be forced to play even when badly injured).  The high-profile playing positions have recently become even more injury-laden, of course, with situations like the University of Florida Gators having to play their 4th-string quarterback last season, when the three young men ahead of him suffered season-ending (and potentially career-ending) injuries.

Some of the most brutal play, however, is seen on special teams, especially kickoffs, where little-used players try to prove their mettle by taking insane risks that end up injuring themselves and their opponents (and sometimes even their teammates).  The injury potential is so extreme that the NFL has even considered eliminating kickoffs entirely.  It is at least possible that, as a result of the reforms that I support, college teams could reduce their rosters to the point where the special teams players suffer more debilitating injuries, because there are fewer bodies available to share the punishment of the games' worst plays.

I do not view this concern as a reason to abandon the non-salary goals of the college players' union.  I offer this example as merely one possible side-effect of changing the economics of the game, of which there are surely others.  Although I have been skeptical of the idea that players should be paid in cash, rather than scholarships, it is abundantly clear that the players deserve to have the rules changed in ways that would redirect economic resources away from athletic departments and toward the athletes.  The side-effects need to be managed, of course, but they are not a reason to abandon reform.


  1. Mr. Buchanan treats all college scholarship athletes as a single group, but in order to reach judgment on the system one must separate out the athletes into two groups. The first group consists of the scholarship athletes who play football and basketball. The second group consists of all the other scholarship athletes. Mr. Buchanan’s comments are right on target with respect to the second group.

    But with respect to the first group the situation is much more nuanced. Certainly many of these athletes do get a fine education. But many do not. Here are the comments by an educational assistant for scholarship athletes at the still growing scandal at UNC.

    "Athletes couldn't write a paper," Mary Willingham, a specialist in the school's learning-support system-turned-whistleblower, told ESPN. "They couldn't write a paragraph. They couldn't write a sentence yet." She said that some of the students were reading at a second- or third-grade level, which is considered illiterate for a college-age student. As Willingham notes, in the "AFAM" classes, players were notching As and Bs, but in actual classes such as Biology and Economics were receiving Ds and Fs.

    And here is an A- paper in what was maybe all that was required in an the course.

    “On the evening of December Rosa Parks decided that she was going to sit in the white people section on the bus in Montgomery, Alabama. During this time blacks had to give up there seats to whites when more whites got on the bus. Rosa Parks refused to give up her seat. Her and the bus driver began to talk and the conversation went like this. “Let me have those front seats” said the driver. She didn’t get up and told the driver that she was tired of giving her seat to white people. “I’m going to have you arrested,” said the driver. “You may do that,” Rosa Parks responded. Two white policemen came in and Rosa Parks asked them “why do you all push us around?” The police officer replied and said “I don’t know, but the law is the law and you’re under arrest.”

    Yes, that is it in its entirety. And remember UNC is one of the better schools. What exactly does anyone think goes on at the University Kentucky or the University of Alabama or even Notre Dame?

  2. Anonymous8:39 PM

    My own preference is to get institutions of higher education out of sports entirely. Historically there have been two major justifications for "student athletes". The first arises out of the progressive ideal at the turn of the 20th century of "healthy bodies, healthy minds". The second, more recent justification from the 1960s, is that sports promote diversity and drive community building.

    Neither of these justifications are persuasive. The first justification--while well-intended--has not been born out by more than 100 years of research. The relationship between mental health and physical health (in the college context) is nil. The second justification--diversity and community--while certainly reasonable does not /demand/ sports for its fulfillment. There are other ways to achieve this same goal.

    One reality that I think often gets ignored is the trickle down effect of big sports programs. I once worked for a smaller regional university that due to budget cuts from the state gave serious consideration to cutting its sport programs. The football program alone was a net drain on the the university of more than a million dollars a year. One argument that had a large effect on the debate was the effect cutting sports would have on recruitment. There was a perception that the university would be considered "second class" if it fielded no sports teams and thus at an anti-competitive disadvantage to peer institutions when it came to recruiting.

    In my view for many institutions modern college sports are a parasite. They can't cut the programs yet all the sports programs do is feed off the host providing little in return. My hope is that unionization is enough to change the cost-benefit relationship for many universities.

  3. "College" football is at issue here. I think the students (sic) should be "primarily" so. The discussion by DR is very troubling. It should be faced. (Cf. Someone like Byron White who was a great college athlete AND scholar.) And, if unionization etc. helps there, great.

    As to separating college from sports, the problems here tend to be a few sports. College lacrosse or something is not the problem.

    I really question the idea that college sports is not useful for both of the reasons offered, though admit to not reading the literature. At least, I am comfortable saying "nil" is an exaggeration.

    Sports do help physical health and that does help mental health. Teamwork, discipline and other things also help education and overall well being, which colleges should be concerned with especially with students who might be living there for four years. The diversity and community building also is a benefit.

    Why is "college" different here? Does the benefit in high school stop at some artificial line, perhaps mere months later? The money from football particularly might pervert things, but overall, sports is a useful part of education and life.

    If the college wasn't providing it, the students would. And, the college would be a logical source of the materials and space for various sports.

  4. Anonymous3:35 PM

    @Joe. In this discussion it's important to separate different concepts. There is no dispute about the connection between physical activity and mental health. But athletics is more than the doctor recommended one hour of vigorous walking a day. The question is does competitive inter-collegiate athletics have a positive impact on mental health that is separate and distinct from ordinary physical activity? Phrased differently, what's the "value added" of athletics to mental health? That is a narrow question and one in which has been answered in the negative. Indeed, we now know that it is quite possible to overexercise and overtrain leading to the person being worse off mentally and physically than before.

    Your larger point about socialization, diversity, discipline etc. are valid. Yet it is important to remember that that all of these things were valid before the advent of modern sports. Indeed, one of the primary reasons fraternities were invented was to assist with socialization. Again, there is nothing exclusive to sports in being able to provide those benefits.

    Now, one can argue that sports remain the most efficient way to develop certain salutatory personal characteristics in young men. That is a much more debatable point, however, which as I stated in my first post has lots of ramifications that are not intuitively obvious.

    Having been a university employee for a chuck of life one of the things that always struck me about higher education is how inherently conservative it is. There are lots of smart and innovative people in higher education but strangely that innovation, curiosity, and willingness to apply science to the improvement of humanity comes to a screeching halt whenever anyone even dares to challenge the underlying make-up of the university itself. We live in a different world than when Teddy R. first founded the NCAA so why should universities still be play by the rules of the NCAA? It's a much broader question than simply football or basketball and speaks directly to the role of the university in preparing a country for the future. Many studies have shown that one of the most admired characteristics of American culture is technology and science. If that's our comparative advantage in the world why are we wasting so much cultural capital on sports?

  5. I think the commentary here is right on. The issue is not the role of sports, even inter-collegiate competition in the lives of university students. To participate in team athletics is beneficial, valuable and constructive towards education, maturity and good health. All students should have the opportunity to play.

    The problem is that in two sports, basketball and football the role of money is so great that it has become a highly corrosive force. The result is that

    1. So-called student athletes in these sports of exploited in the sense that they do not participate in the largess, do not have basic protections, are highly restricted in their personal liberties and are largely a separate class of students. The fact that some, probably a minority, of scholarship athletes in football and basketball are able to take advantage of the free education does not exonerate the programs.

    2. The money distracts the universities from their mission of educating students and corrupts the universities, as the numerous scandals will testify to. One has to believe that for every illegal, unethical or destructive activity that is brought to life, there are five or ten that remain hidden. The statement by one university President years ago, made tongue in cheek that “he wanted a university the football team could be proud of” is now just painful to hear.

    Drive by the parking lot of the athletic dorm when school is in session and the teams are not on the road. Note the proliferation of new cars and trucks. Where exactly does anyone think they came from?

    Even worse, not only is there no way out of this horrific situation, the increase in money into the system will only make things worse in the future. Big money is rotting higher education. And how long does anyone think it will be before a major scandal is exposed in something like Charter Schools, some of which will be found to be recruiting high school kids with under the table payments to them and/or their parents? Yes it will happen, it is probably happening as we speak and the only question is will anybody care. The smart money betting on that question is no.

  6. I have not studied the issue, so will not pretend to respond as an expert, but have read various accounts about the "value added" by sports.

    The response, btw, seems to have narrowed things. The original comment said "sports," but now its "competitive inter-collegiate athletics." I'll state for the sake of argument that at some point the value added is small.

    But, "sports" was my immediate concern. Plus there is the other stuff. And, sports go back to the ancients. I also basically agree with DR's second comment. Yes, we need to balance anything. And, college lacrosse and track/field isn't our concern here. It is that a few sports, particularly in certain institutions, is being used badly.

    I don't think throwing the baby out with the bathwater is necessary there. Putting aside it isn't likely. I share the professor's doubts about paying college players here. I do think some sort of union or something can help them. And, if "colleges" are involved, the players should have decent education. It perverts what should be their mission to do otherwise.

    BTW, I'm still not sure why the original comment focused on "college." Is it good in high school? The line there seems artificial.

  7. This is from Today's USA Today.

    "For some people, it was worth a lot of money when Aaron Harrison drained a clutch 3-pointer that sent Kentucky to the Final Four.

    Harrison just doesn’t happen to be one of them.

    As USA TODAY Sports’ Steve Berkowitz points out, the Kentucky coaches earned over $300,000 in bonuses when Harrison made that three to advance the Wildcats. The figure isn’t wildly different from other incentive packages at other schools, but it does show just how much money is being thrown around in these NCAA programs, none of which is going to the players.

    According to contracts obtained by USA TODAY Sports in conjunction with Indiana University’s National Sports Journalism Center, Kentucky’s advance to the Final Four means the following:

    Head coach John Calipari gets a $150,000 bonus. (That’s on top of his $5.2 million in base compensation for this season, the $100,000 bonus he got for Kentucky being the Sweet 16 and the additional $100,000 bonus he got for them being the Elite Eight.)

    Each of the team’s three full-time assistant coaches gets an amount equal to two months’ salary.

    For Kenny Payne (who is making $350,000 this season), that’s $58,334. For John Robic ($300,000), that’s $50,000.
    For Orlando Antigua ($275,000), that’s $45,834.The assistants already had gained 1 month’s salary apiece as a reward for the team making the NCAA tournament."

    Somebody tell me again why Kentucky's basketball program is not a business. Really, somebody, anybody? It sure smells like one, and yes I mean that in more ways than one.

  8. It's a much broader question than simply football or basketball and speaks directly to the role of the university in preparing a country for the future. Many studies have shown that one of the most admired characteristics of American culture is technology and science. If that's our comparative advantage in the world why are we wasting so much cultural capital on sports? Cheap Fifa 14 Coins -2014 FIFA World Cup Brazil


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