Compensation

Compensation of college athletes is inevitable and will likely expose some universities' questionable accounting practices (opinion)

As usual, March Madness took center stage for many universities in recent weeks. Yet this March, we in higher ed had an additional reason to focus on the National Collegiate Athletic Association. On March 31, the U.S. Supreme Court heard oral argument in NCAA v. Alston to decide whether college athletes may receive some forms of compensation for their efforts -- an increasingly vital issue of fairness and equality.

Throughout the argument, the justices expressed support for some kind of compensation for student athletes. Their repeated references to the billions of dollars in revenue, the sky-high coaching salaries and the bizarre nature of a market that depends upon free labor demonstrated that the justices are keenly attuned to the reality of college sports. Predicting the outcome from argument is always speculative at best. But the justices clearly signaled that the equities are on the side of the student athletes.

The justices did struggle with where to draw the line about any compensation. Experienced advocates will assure you, however, that a defense to a glaring injustice that depends on the difficulty of line drawing is the last line of defense.

The Supreme Court’s decision will command attention. Yet new state laws already authorize payment, and proposed federal legislation is moving in a similar direction. Regardless of the court’s ruling, compensation of student athletes is inevitable. The question is not if but when.

The spotlight will then shine on universities, which will have to do something they’ve never had or wanted to do: open up their books and give a truthful accounting of their athletics financials. It won’t be a pretty sight. Even in the best of times, most institutions run substantial deficits. More troubling, institutional leadership -- presidents, chancellors and trustees -- won’t be able to hide the questionable financial accounting practices that some now employ.

What do I mean by “questionable financial accounting practices”? What I discovered as chancellor of Vanderbilt University about other higher ed institutions is that some do two kinds of accounting: one for the university based on established accounting rules and another for athletics. Universities are assiduous about following the former in all formal reporting. But when it comes to their athletics numbers, practices diverge sharply. The NCAA tries to impose some structure, but its efforts are incomplete. And it keeps the report for each institution confidential, with only some public universities’ numbers available under state freedom of information laws. Not much transparency in a system that’s behind a firewall.

The revelation of certain accounting tricks that other universities practiced really stunned me when I was a chancellor. How could this happen, I wondered. I was grateful that my university hadn’t fallen to the temptation to employ these sleights of hand. Let me offer a survey of some of them.

Not charging the athletics department for the cost of its scholarships. This is one of the most common schemes. When a university gives scholarships to students, including athletes, it has the expense of paying for those scholarships. For example, if 200 athletes receive a $60,000 scholarship, the institution has an expense of $12 million.

Wouldn’t it be wonderful if those costs could vanish and the athletic department’s costs could go down by $12 million? Yes, and here’s how it’s done. Many people -- including those of influence, like some athletics boosters and board members -- don’t believe athletics scholarships truly cost that much. They insist that “adding this small number of students to classes is not that expensive.” Putting the argument in the language of economics, the claim is that those students add very little or no marginal cost -- that they are like the last few passengers who fill up an airplane on a flight that would have taken off anyway.

There are colossal and myriad problems with this view. The most basic flaw, apart from violating accounting rules, is that it is an exceedingly bad business practice. When any business takes in revenue, its positive margin comes from its ability to cover its fixed costs and then keep its marginal revenues above marginal cost.

It is no different at a university. On a university budget of $1 billion in revenue, about 80 percent, or $800 million, would cover fixed costs, and maybe another 10 percent, or $100 million, would cover variable costs. The remainder of the revenue -- $100 million -- is from the ability to price above marginal and variable cost. This is the positive margin universities need to pay for things like building construction, replacement and other capital needs, as well as any interest due. Nobody runs a great business charging below marginal cost or zero. It is the ability to price above marginal cost that allows an institution to have a positive margin.

Hiding the costs elsewhere. If we don’t charge the athletics department for those scholarships, then on what set of books do they land? I ask on “what set of books” because a university metaphorically is keeping two sets of books: one in the formal financial report and the other when it shows the athletics budget. And here’s how that’s done.

A university financial report must follow established accounting rules that scholarships are an expense (“contra revenue”). Thus, in a university financial report, accounting for scholarships is a two-step process: first, there is gross tuition, which means all charged tuition, and then there is the cost of scholarships. Subtracting the scholarships from gross tuition is net tuition, or money actually collected.

The scholarship costs for all students, including athletics scholarships, are found in that second number. Thus, the university is obliged to show such scholarship costs in the aggregate. But since athletics costs are not reported out separately, the athletics department often will show its numbers without those costs. As I said, two sets of books.

Now this is getting mysterious. This is an expense. Somebody has to pay. Who pays? The costs of those scholarships are shifted to the departments and schools in which the student athletes are enrolled. Academic budgets take the hit.

People often suggest establishing an endowment for the athletic scholarships to provide the revenue to offsets the cost. Never going to happen. Athletic directors and coaches with short time horizons are focused on facilities. They want big, shiny new stadiums and locker rooms to show off. It’s all part of the facilities arms race in college athletics. Raising dollars for scholarships in athletics is not a priority with some. I’ve even heard an athletic director say, “Why should I raise money for scholarships? The university will pay for them!”

Not charging overhead, plant and other costs to athletics. Besides not passing along the cost of scholarships, some universities use another, similar technique. They ask themselves, “Heck, if we don’t have to charge athletics for scholarships, why charge them for anything?”

Universities have the costs of overhead, or what is often called “G and A” -- general and administrative expenses -- for items like utilities, police and security, and so forth. They allocate such costs in various ways, with some institutions charging by actual usage, others charging on a flat tax basis and others doing something in between. Whatever the method chosen, all parts of the university should be charged under the same set of rules. But what if the athletics department has different rules and could just make overhead costs disappear?

Take an institution with $100 million in athletics revenue and $115 million in expenses. That deficit of $15 million is not welcome news, especially if leaders and boosters want to invest more in athletics. A great solution is to “turn athletics into a profit center.” If administrators remove $15 million in overhead and another $12 million in scholarships, athletics is left with a profit of $12 million.

This overhead ruse comes in particularly handy when it comes to building large new facilities. Every building on campus has operating expenses, including the costs of utilities and upkeep. To make new athletic facilities financially viable -- especially those that have no underlying ticket or other revenue -- a good trick is to “waive” such operating costs. The athletics building thus gets a free pass on what every academic facility has to pay. Nobody notices, because these athletic costs are shifted into the rates paid by academic facilities for utilities and upkeep. A secret well kept, and a fight with deans and faculty avoided.

Counting philanthropy bogusly. Universities want to fund very large capital investments without drawing the ire of a number of constituencies. Athletics projects may be very popular with some individuals, but others will wonder how they will be paid for and what trade-offs will be made. Faculty and staff, the former always and the latter increasingly, will want to know how these investments will affect them: their salaries, wages and benefits, as well as the facilities where they work together on research and teaching. Students and parents will wonder about rising tuition and the quality of the educational experience.

Every president or chancellor wants to say that “athletics fundraising paid for this!” It generally quiets down objections, although faculty members will wonder if the institution’s prioritization of capital gifts for athletics will diminish donations to academics. The costs of many of these projects can total in the $100 millions, and outside of a few universities, it is hard to cover the high debt levels through ticket sales and luxury suites. Being able to say, “We paid for it through fundraising” is the ultimate safe harbor.

One of the most pernicious spins is to falsely imply that “gifts to athletics paid for this facility.” For example, if a facility costs $100 million, and for the past decade, athletics has raised $200 million, you might hear someone say that “money has been given to athletics well above the cost to pay for this facility.” Notice the misdirection here. The person doesn’t say, “Money has been given for this facility.” When, in fact, was the money given? A year ago? Ten years ago? And for what purpose? To build a practice gym? A soccer field? Annual operations? And has the money already been spent? If so, that money is gone. Misleading and crafty! The PR department is not the audit arm, and it will want to put a helpful spin on things to hype results or get leadership off the hot seat.

Agents for Honest Accounting

This is all pretty grim, and it must pain some people to learn of the lack of courage and transparency of some of our leaders. But I’m not so cynical as to believe that change is hopeless. How can we go about fixing this? Who might be the best agent for change? Let’s review some options here and assess their likelihood.

  • Governing boards. Good luck! Sadly, some athletic boosters and even trustees know that showing large subsidies to athletics, which must come from academic funds, higher tuition and fees is a tough sell. So they are looking for ways to boost the monies going to athletics without it “being shown” or “felt.” Other presidents and chancellors have told me about these issues at the board level. Fortunately, where I teach, the practice has been to have one set of accounting rules govern all schools and departments, including athletics.
  • Presidents and chancellors. Top administrators can sometimes be advocates for the tricks I’ve described. Why? Perhaps because the trustees and leadership both embrace the scheme. Don’t expect the president or chancellor who has been complicit to suddenly say, “This is all misleading and inappropriate!”
  • Athletic directors. No way! They love bragging about how they are performing. Redoing the accounting would weaken their position internally and undercut their carefully crafted “master of the universe” public image. It is also hard to defend multimillion-dollar athletic director contracts if people know the department is cratering financially.
  • NCAA. LOL! It is on its last legs and trying to figure out how to compensate players (finally) without losing all of the monies it has made for itself. Survival, not sanity, is its goal.
  • Faculty members. They can be good on these issues, yet do they know how to decode university financial statements? What’s more, their interest in this topic waxes and wanes. But faculty members can provide useful checks, especially if the university leadership is transparent and truthful.
  • Journalists. Another LOL, at least for those in the sports media. They’re usually part of the “athletic-military-industrial” complex. They engage in cheerleading, or alternatively deifying or roasting coaches, and remain silent on important issues in college sports. Check your local sports pages and ask yourself how many stories they publish on the economics of athletics or whether college athletes should be paid -- as well as about the clear link between lack of compensation and issues of race and inequality.
  • Knight Commission. This commission is a credible and influential voice on college athletics reform. It is a diverse group representing all of the key constituencies, and it openly and robustly debates the issues and recommends solutions. (Full disclosure: I was a member of this commission.) As the commission addresses compensation for college athletes, it will inevitably get into the true costs and revenues.
  • Securities and Exchange Commission. Universities issue both tax-free and taxable debt to the public markets, yet it seems unlikely that the SEC will get engaged. That said, one should never say never. The PAC-12 conference’s flirtation with selling its media rights to private equity investors is yet another signal that money and profit maximization reign supreme. It’s not beyond the realm of possibility to think of some federal or state agency holding an inquiry into monetization of athletics revenue.
  • Bond rating agencies. Presidents are in conversation with agencies -- Moody’s, S&P and Fitch -- that rate their debt, and those discussions can lead to pointed questions about areas of risk. It would not be far-fetched for such agencies to start asking about athletics budgets, and university leaders will have to be honest in response. If those agencies decide to probe on athletics finances, we could see a major shift in university behavior.
  • Congress. Athletics has been called the front porch of the university, and a lot of ambitious and curious legislators around the nation walk by that front porch every day. Congress is increasingly focusing on college sports, and several proposed bills on paying student athletes have bipartisan support. One proposal allows royalty-sharing revenue paid to student athletes to be offset by the cost of scholarships. Congress may decide that if athletics departments don’t pay for scholarships, that offset would be disallowed. Uncovering the true numbers seems foundational to any congressional plan to compensate college athletes
  • Litigation. Until Congress acts, and especially if the Supreme Court rules for student athletes, this is perhaps the best option for forcing change. Even a ruling for the NCAA may not foreclose future litigation. Moreover, a court ruling for the NCAA will only increase the likelihood of federal legislation that will spawn litigation. State laws already permit compensation, and litigation on these is inevitable. The NCAA has already threatened to challenge a new California law, arguing that such laws "burden interstate commerce" in college sports. Plainly, the NCAA misses the irony of insisting that student athletes must remain amateurs to sustain a multibillion-dollar industry in college sports. Discovery in our civil justice system is broad and appropriately deep on matters of significant relevancy.

Whatever the way into the numbers, student athletes will rightly claim that they produce much of the revenue and are entitled to get a true accounting of all of these hidden subsidies and tricks. A good model can be found in the collective bargaining agreements of the professional leagues. Indeed, during the recent oral argument, Justice Brett Kavanaugh referred to collective bargaining as an endgame solution. Importantly, these agreements give the players audit rights.

I’ll say it again: compensation is inevitable, however the Supreme Court rules. Indeed, the NCAA’s recent crabbed proposal -- now delayed -- to pay some compensation clearly jettisons their long-standing argument that the product called college sports would not exist if student athletes were compensated. Fair compensation for student athletes is coming. And with that, we will finally get an honest accounting. Stay tuned.

Nicholas S. Zeppos is chancellor emeritus at Vanderbilt University and Distinguished Professor of Law and Political Science. He served as chancellor from 2008 to 2019, and during that time, he was president of the Board of Directors of the Southeastern Conference and a member of the Knight Commission on Intercollegiate Athletics.

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Five steps to take when negotiating the pay and benefits of a new job (opinion)

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Failed presidencies shouldn't be rewarded with platinum parachutes (opinion)

Perhaps it is simply a matter of better and more comprehensive coverage by the news media, but it still seems that an unusually large number of university presidents are leaving with little notice and well before the end of their contracts -- as many as five in just one recent week. While the circumstances surrounding each of these departures may vary, there is a likely constant: some form of parachute for the outgoing president.

We have written before about “platinum parachutes” in the context of our study of presidential contracts. They are the guarantees written into an employment agreement specifying the terms of a postpresidential appointment, typically for two scenarios. The first, and most common, is in contemplation of a president completing the term of the contract and deciding to return to the faculty. The other is in the case of the governing board choosing either to not renew the contract or terminate without cause the agreement before it expires. The terms for the postpresidential appointment are usually the same and can be quite lucrative for the outgoing president -- and quite expensive for the university.

We did some back-of-the-envelope calculations based on publicly available salary data for the five presidents we have mentioned. Our estimate is that, taken together, these five individuals have a total base presidential pay of approximately $2.5 million. That does not include fringe benefits, bonuses, deferred compensation or any nontaxable benefits.

If each of these people were to receive the most common elements of a platinum parachute, they would obtain a fully paid sabbatical next year at their presidential base salary. They might also receive a discretionary fund, a staff member or research assistant, and a suitable office. Assuming they were all to return to the faculty after this sabbatical, they probably would do so as tenured full professors. Most frequently, we see this salary set as a percentage of the last presidential base salary -- usually 75 percent. So as a group, that would be in the neighborhood of just under $2 million per year. They also might continue to have discretionary funds, an administrative or research assistant, and a suitable office.

While we did not determine the age of each of these individuals, we did identify one president who is stepping down at age 61. If he were to remain in a tenured position for another 10 years, the university’s financial obligation for just his base salary could be in the neighborhood of $4.5 million, accounting for likely raises. If you add a typical fringe-benefit package to that, the cost could be close to an additional $1 million. If the group as a whole stayed in their professorial roles for 10 years, we would anticipate a future liability of roughly $30 million, including raises, fringe benefits and other perks.

That is just for five people, none of whom appear to have served the full term of their contracts. It’s also important to remember that at least some of them probably haven’t been in the classroom or active scholars in their respective fields for a while. Granted, we do not know how many, if any, will remain on staff as tenured faculty members. Some may have entered into a separate so-called exit agreement. Sometimes these agreements allow the institution to buy out tenure rights, which we occasionally have seen to be even more expensive than the parachutes in the original contracts, such as the recent agreement at the University of Central Florida.

As we heard during the first debates among Democratic candidates, college affordability is a growing public concern. Perhaps it is time for college and university governing boards to consider whether current, as well as future, students should have to pay for these failed presidencies. In fact, we are willing to go even further and suggest that platinum parachutes, even for successful presidents, are not only costly but of questionable value to both the institution and the public.

For most of us, when we leave our positions, we depart at best with the good wishes of our coworkers, not a lifetime sinecure. Why should college presidents be any different?

James Finkelstein is professor emeritus of public policy and Judith Wilde is chief operating officer and professor in the Schar School of Policy and Government at George Mason University.

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Essay on emerging culture of patronage at Michigan State

Later in his life, Jonas Salk began thinking, writing and speaking about various aspects of the human condition. In 1985, he went to New York University to discuss his most recent, and what turned out to be his last, book, Anatomy of Reality: Merging of Intuition and Reason. He spoke about changing societal institutions in terms of metamorphosis, with a focus on two powerful ideas.

First, Salk said that our institutions evolve constantly. Second, he stated with great confidence that more often than not, we fail to recognize these transformations as they happen. One very powerful example he gave linked the closing of state mental hospitals to homelessness, which in turn became linked to both the crack cocaine epidemic and then to the emerging HIV/AIDS crisis. Only in hindsight, Salk said, did we begin to understand how these were, at least in part, related events.

While it may seem like a broad leap from Jonas Salk’s evolving institutions to the crisis at Michigan State University, there are early signs that what is happening there may be an early indicator of public higher education’s metamorphosis -- and not in a good way.

In an almost reflexive response to the televised sentencing of Larry Nassar, the elected MSU Board of Trustees accepted the resignation of the long-serving president, Lou Anna Simon, and awarded her a platinum parachute. To many -- not all -- that made sense.

But what happened next, the almost immediate appointment of a former Michigan governor as interim president, without any faculty input or community involvement, led to a vote of no confidence in the board. Salk might have sensed this as an early indicator that a metamorphosis is underway: the transformation of MSU from a meritocracy to an emerging culture of cronyism.

Of course, politicians becoming university presidents is nothing new. In fact, it goes back to the founding of the country. In 1785, Abraham Baldwin, a delegate to both the Confederation Congress and the Constitutional Convention, was appointed the first president of the University of Georgia. More recently, politicians such as John Brademas, David Boren, Thomas Kean, Janet Napolitano, Mitch Daniels, Sam Olens and Terry Branstad, to name a few, have become university presidents after leaving elected office. This list does not include former appointed government officials who also have become university presidents. In their new roles, all received considerably higher salaries and greater perks than they had as elected officials. In fact, as we have stated before, the vast majority of public university presidents are paid significantly more than a governor, a member of Congress or even the president of the United States.

According to the American Council on Education’s American College President Study (2017), the percentage of university presidents coming directly from outside higher education has remained relatively constant since 2001. On the other hand, there has been a decrease in the number of presidents who report their last position as an elected or appointed government official. Nonetheless, the expressed interest and willingness of governing boards to recruit and consider such candidates continues to increase. Michigan State is just the latest example and may well be the canary in the coal mine.

It is worth noting the structure of Engler’s employment agreement. Engler’s salary as interim president is set at $1 less than the lowest-paid president of a Big Ten university. His contract also acknowledges that the board has been notified of “his intent to donate” his salary to “qualified university organizations or entities and that such donation will be at the sole discretion of the interim president.” Of particular interest, however, is that the language does not appear to create a legally binding obligation to do so.

Although Engler declined health care and retirement benefits, he did accept other benefits such as access to a car and driver for “official university duties” as well as a vehicle such as those "furnished to other senior executives." In our review of over 200 presidential contracts, it appears that most provide a car, but this is one of the very few that also provides a driver. There are other significant benefits that he also will accept -- spousal travel, tickets for his family to attend cultural and athletic events, and being permitted to continue serving on several corporate boards -- where he appears to have received over $600,000 last year in director’s fees and stock awards. By contrast, Lou Anna Simon does not appear ever to have held a paid corporate directorship.

The local news media detailed Engler’s first spate of appointments at MSU. These may foreshadow the full metamorphosis of MSU into a political pool for patronage. To start, he appointed Carol Morey Viventi, who served as his deputy chief of staff 25 years ago and since then has spent her entire career in state government. According to the Macinack Center, her last reported state salary, in 2016, was just over $135,000. She now holds a newly created position of vice president and special counsel at MSU with a reported salary of $250,000.

Engler’s former press secretary, John Truscott, was hired on a three-month contract at $325 per hour, to handle crisis communication. On an annualized basis, this hourly rate totals more than $675,000 per year.

Engler also hired Robert Young Jr., former chief justice of the Michigan Supreme Court, at a discounted rate of $640 per hour ($1,331,200 annualized) to coordinate various legal matters. Young initially was appointed to the court by Engler in 1999.

Two of the most recently announced appointees, Kathleen Wilber as executive vice president for government and external relations, and Emily Gerkin Guerrant as vice president and university spokesperson, also are Republican loyalists. Wilber served for 12 years in Engler’s gubernatorial cabinet. She will be paid 30 percent more than her predecessor. Guerrant spent the first seven years of her career as a Republican staff member in the Michigan House of Representatives.

Finally of note, Engler hired his predecessor, former governor James Blanchard, through the law firm DLA Piper. The engagement letters for the $50,000-per-month retainer, $600,000 for the first year, provide only a general description of the services to be provided. These also allow for the possibility of additional billing at an unspecified hourly rate once any official investigations begin, such as the one recently announced by the U.S. Department of Education.

Beyond Engler’s prior relationships with these individuals, there is no evidence that any of these personnel appointments or contracts went through an open and competitive search or procurement process. Rather, using the Nassar crisis, it appears that the board has suspended normal business practices and permitted an interim president to reward members of his former staff and other colleagues with highly paid positions and lucrative, potentially long-term contracts.

Given that MSU will be dealing with the fallout from the Nassar scandal for years to come, it is possible and perhaps likely that these appointments and contracts could extend well beyond Engler’s tenure and be worth millions. Seven years after the Sandusky scandal broke, Pennsylvania State University has paid nearly $60 million in legal and public relations fees, and the meter is still running. In less than a year, MSU already has racked up more than $12 million in fees to their own attorneys and PR. In addition, MSU recently announced that it will pay $500 million to Nassar’s victims ($425 million to the 332 victims in current litigation plus $75 million in a trust fund for potential future plaintiffs), plus an unknown amount to the victims’ attorneys.

There are many differences between being elected to office and being appointed as a university president. For politicians, “to the victor go the spoils.” They get to make a raft of new appointments at every level of government, from personal staff to agency heads to commission members. Past association and loyalty are often essential qualifications to land a position in a new administration. In many cases, these individuals make a personal sacrifice by accepting substantially lower compensation in order to serve. Not only is it clear that there is a new culture of cronyism and patronage being built at MSU, we are learning that it also very lucrative.

Time will tell whether or not the MSU Board of Trustees will survive. But what does seem certain is that the interim president’s appointees will be there for years to come and are the first to cash in on the tragedy that befell Nassar’s victims. Given this new culture of cronyism, we should not be surprised if the metamorphosis taking place results in something more like a character from Kafka than a beautiful butterfly.

James Finkelstein is professor emeritus at George Mason University. Judith Wilde is the chief operating officer and a professor at George Mason's Schar School of Policy and Government.

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An examination of college presidents' platinum parachutes (essay)

James Finkelstein and Judith Wilde examine whether such employment agreements are good for higher ed institutions and the public interest.

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An examination of the growing number of perks and bonuses for college presidents (essay)

James Finkelstein and Judith Wilde explore the recent upward trend in both the number and cost of perks and bonuses for presidents of public universities.

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Presidential contracts are becoming more complex and corporate (essay)

Employment agreements for presidents are becoming increasingly complex and bear little resemblance to the typical appointment letters for faculty leaders or other senior administrators, write James Finkelstein and Judith Wilde.

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IT is behind flattening of higher education's wage premium, study finds

The wage gap between college degree holders and workers without a degree has not grown in recent years, and a new study says the culprit is information technology's displacement of "routine" jobs.

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CUPA-HR survey finds declines in wellness programs and adjunct benefits

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