A 'new deal' for the 21st-century college athlete (essay)

In 1997, I published a book titled The Successful College Athletic Program: The New Standard, in which I wrote about “the deal” between the “student-athlete and the institution." Specifically, I argued that the agreement in which student-athletes provide athletic performance in exchange for the opportunity to earn a well-balanced athletic, academic and social experience resulting in a meaningful degree that prepares them for the next 50 years of their lives was, in principle, fair. As a former college basketball player and former associate commissioner of the Southeastern Conference, I saw enough evidence of this in the players I interacted with that I truly believed it.

Given how much the landscape of intercollegiate athletics has changed since 1997, though, The New Standard might as well have been published in 1887.

Everything about big-time college athletics has exploded -- from budgets to revenue generated, from media exposure to public scrutiny and, in a corresponding fashion, the pressure to win and the 24/7, 12-months-a-year athletic demands on players. The result? There is no longer any question that the education athletes are receiving as their share of the bargain at far too many universities has been woefully inadequate, and in some cases fraudulent. Clearly, it is time to restructure the athlete-institution agreement in a way that reflects the realities of major college athletics in the 21st century.

Before proceeding, we must recognize a fundamental reality. There is no longer any point in referring to the young people who play football and men’s basketball at the major college level as “student-athletes.” Given the amount of time they are required to spend on athletics, for all practicality, they are, in fact, professionals. Further, their ability to keep their scholarships (pay) hinges upon their ability to perform athletically (play). And a professional athlete is one who plays for pay. So let’s move beyond the notion that they are amateurs and can ever be so again. That is pure fantasy.

So how can the deal be restructured to be equitable in the wildly commercialized, highly professionalized, media-driven world of college athletics in the 21st century?

Let’s start with the basics, the benefits provided and costs covered for the athlete while on campus. Fortunately, many of these basic, on-campus needs are beginning to be met with proposals for increased cost of attendance and living stipends and the possibility of multiyear scholarship guarantees that have been granted through recent NCAA changes. That’s a good start.

But let’s not simply give athletes things while on campus to keep them and the public placated in the short term. We must also recalibrate our priorities to where long-term considerations become paramount. That will require a more creative, open-minded and strategic approach.

The New Deal

There are two fundamental principles and responsibilities that colleges and universities owe to all students, including athletes: an educational experience that is relevant in today’s world and a commitment to keeping them safe and healthy.

As has been well documented, the health risks of football are skyrocketing, driven by the increasing revelations relating to the risk of concussion and long-term brain trauma. We’re no longer talking about sprained ankles and broken bones. They can heal. Brains often do not.

As a result, the ground has shifted regarding institutional responsibility for not only athletes’ short-term health while on campus but also their long-term physical well-being. While there are many issues to be worked out regarding eligibility, length of coverage and adjudication of benefits and costs, some package of long-term health care after separation from the institution should be a part of the New Deal.

Further, it is abundantly clear that the standard college educational experience is not available for football and men’s basketball athletes. Yet we insist on forcing many who are clearly nontraditional students into a traditional educational format. Clearly, that approach has not worked. Simply consider the University of North Carolina’s decades-long use of bogus classes and majors to keep athletes eligible as exhibit A. And that was a school that had long been cited as one that did it the “right” way. Obviously, UNC is not the only college to engage in this practice, as evidenced in recent academic fraud cases at Syracuse and the University of Texas. The fact is, academic fraud and disregarding the long-term needs and aspirations of athletes in the name of winning has been going on, in one form or another, for decades, if not for a century.

We simply can’t continue to enter into agreements with young athletes based on a promise on which we can’t deliver. We must restructure the academic portion of their college experience in a way that will make the education they do receive worthy of, and relevant in, the 21st century.

As a foundation, there must be an opportunity and mechanism for athletes to return to school after their playing days are over. For example, for every year that an athlete plays for a university, he should be awarded an additional one-year full scholarship to attend the institution at a later date to more fully avail himself of the broad array of not only educational, but social, opportunities and experiences that were not truly available when playing ball. Regardless of how the specifics are worked out, the New Deal should include such a provision.

The On-Campus Payout

There is another aspect to the educational payout that must be addressed. What should the educational experience look like while on campus?

It starts with the sacred notion of the athlete as a full-time student. The college experience of these athletes is so radically different from that of the average, traditional student that they might as well be attending college on another planet. Why continue the farce of these athletes having to be traditional full-time students when the fundamental structure of the system prevents them from being so?

For example, during their main playing seasons, athletes should be part-time students. During the off-season, they should be required to be enrolled in more hours. But, once again, we must be honest. Being a major college athlete in the sports of football and basketball is a 24-7, year-round job. What they really need is a legitimate off-season. It was never intended that part of the deal was that we “own” them twelve months a year. They are not machines. Athletes need a period of time where they have no responsibilities or requirements related to the sport for at least three months per year. Even professional teams give their athletes time off.

Further, many expect that as a result of several legal cases currently in the system, athletes will be provided the right to leverage their own pictures and images for financial gain while enrolled in college. Rather than fighting these changes, educational and athletic leaders should embrace it as an opportunity to restructure the deal in new and creative ways that are more relevant for the athlete of the 21st century.

For example, giving athletes the opportunity to leverage their name and build their personal brand offers a wonderful experiential educational opportunity to restructure the bargain in a way that makes sense for today’s world.

Why not, for example, provide athletes the option of a restructured curriculum to not only allow them to leverage their name and brand but to provide opportunities to teach lessons in business and entrepreneurship? Let’s put a curriculum in place where, through a true, real-life case study -- their very own -- they learn the skills of innovation, branding and entrepreneurship.

Athletes will be much more engaged as students if their curriculum centers on using their name and image to build a personal brand or a small business that could result in their own financial gain. Such a curriculum could include studies in marketing, social media, brand equity, revenue development, financial investing, sales, leadership and mentoring development, sport management, coaching, and sport law. These courses are far more likely to be viewed as being more relevant by today’s athletes than those that comprise the more traditional curriculum.

Although some may consider such a change simply kowtowing to athletes, the point is that we must reconsider what a meaningful educational experience for athletes in today’s world consists of, as it is clear that the current framework is outdated.

While there may have been a time when athletes could achieve a well-balanced athletic and traditional academic experience, that possibility, for big-time football and men’s basketball athletes, no longer exists. While the athletic side of the enterprise has evolved exponentially, the expectations and standards relating to the academic side of the deal have remained virtually unchanged. We simply cannot continue to run a 21st-century athletics enterprise with a 20th-century mind-set and worldview.

So the question for higher education leaders is whether they are going to be progressive agents of change or victims of what will likely be draconian change. The choice for American higher education is to either sort this out among ourselves or leave it to those outside higher education to impose their version of change upon us.

In short, it’s time for a New Deal. This agreement should be comprised of a restructured academic experience that honors our responsibility to provide a real-world, honest and relevant educational experience but also reflects the realities of today’s athlete.

John Gerdy, former associate commissioner of the Southeastern Conference, is founder and executive director of Music for Everyone and author of Ball or Bands: Football vs. Music as an Educational and Community Investment.

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Essay on college football after an NLRB ruling on whether players can unionize

In a rare unanimous opinion in August, the National Labor Relations Board overturned its Chicago regional director’s controversial decision that Northwestern University football players are employees -- and therefore are entitled to unionize and to bargain over the terms and conditions of their employment. But the NLRB ruling avoided the case’s substantive issues, resting instead on a discretionary refusal to exercise jurisdiction.

For the Northwestern football players who brought the case, the issue is over. There is no right of appeal from the NLRB’s ruling. The impounded union election ballots that the 76 eligible players cast were never counted, and they now will be destroyed with no one knowing the outcome.

Yet we would argue that the real and continuing importance of this case lies in what it has contributed to the long overdue, and now increasingly intense, national conversation about the treatment of athletes in college sports -- especially how athletes can influence the rules that control their competitive and academic lives and the level of financial aid and other benefits they receive.

The College Athletes Players Association (led by former athletes, including a Northwestern football player) and other union advocates argue that the door is still open to reform college sports through unionization, a means that most in the college athletics establishment disfavor. The NLRB ruling painstakingly repeats (seven times) that the board reached no decision whether college football players ever might be allowed to unionize.

Yet the rationale for the NLRB’s decision not to rule -- that team sports require common rules with leaguewide applicability, but the vast majority of colleges and universities with major football and other sports programs are public institutions not covered by the National Labor Relations Act -- makes it hard to envision that the NLRB would reconsider this issue anytime soon.

The board’s refusal to decide the merits averted what undoubtedly would have been an abrupt and enormous transformation of college sports. Athletic and other leaders at Northwestern University, the University of Notre Dame and Stanford University already had hinted at withdrawing from big-time athletics had their players been allowed to organize as employees. But the decision still leaves open at least two major and related issues at the center of current discussions of college sports reform:

How to give college players a direct voice in determining how they are treated. The National Collegiate Athletic Association’s member colleges and universities develop both institutional and national policies that govern what they think is the right experience for their athletes. But as former athlete Ramogi Huma, president of the College Athletes Players Association, observed, “How do they know? They haven’t asked the players.” If not through unionization, then some other regularized means must be developed, besides litigation, whereby college athletes can participate directly in the conversation about the rules that apply to their sports.

The existing campus model would be something akin to academic and staff councils, created to give official voice through elected representation to the concerns of constituents, and allow for formal recommendations to be made to the governance structure on their behalf. Some argue that this type of input is not enough.

In January, the NCAA began experimenting with actual student seats with full voting rights on bodies that determine policy. How well that will work and whether it will be considered enough remains to be seen. The College Athletes Players Association will not likely be satisfied with anything less than fully equal representation.

How to fairly shape the college athlete’s total experience. We emphasized “besides litigation” above because what we see as the second major issue -- how to allocate the skyrocketing revenue that players help produce in big-time college athletics and determine what players’ educational, health and financial aid experiences should be at all NCAA levels -- has already found its way into the courts in multiple ways. It is now a race to see if voluntary reforms can outpace litigated results.

In 2014, a California federal judge ruled in a class action brought by former UCLA basketball player Ed O’Bannon that NCAA regulations limiting players’ commercial rights to their own names and likenesses violated antitrust laws. The Ninth Circuit recently issued a stay on that decision until the full appeal can be heard. In the meantime, the Pac-12 conference proposed that the NCAA vote in January on a proposal that would allow athletes to use their names, images and likenesses to promote their own nonathletic business ventures. Two other antitrust claims addressing NCAA rules limiting athletic “grants in aid” are also making their way through the courts. The NLRB ruling cited the beginning of some scholarship reform within the NCAA as additional support for declining jurisdiction in the unionization fight.

The stakes are not small -- for athletes or their institutions. Northwestern’s program generated $30 million in the 2012-13 academic year from ticket sales, broadcast contracts, stadium rights and merchandise sales (not including football-inspired donations from alumni and others). And those numbers are at the lower end for institutions in the five most powerful football conferences or other conferences in the Football Bowl Subdivision, all of whose revenues will continue to increase from their unprecedented long-term media rights contracts.

As those revenues have grown, colleges and universities have made ever greater demands on their athletes for more effort -- sometimes up to 40 or 50 hours per week in addition to their studies. And, in response, athletes are increasingly questioning whether athletic obligations are impeding their academic opportunities.

The Northwestern players had the chance to graduate debt-free -- an opportunity that many of their fellow students would envy. They were awarded scholarships estimated at $61,000 per year, covering their tuition, fees, books, and room and board -- but limited by the NCAA rules until recently to these items alone. For the first time this year NCAA rules permit athletic scholarships to cover the higher “full cost of attendance” at an institution, which is the value of a full need-based or academic scholarship.

In these circumstances it is not surprising that the NLRB regional director questioned the contention of NCAA and college and university officials that Northwestern football players are really students and not employees.

What may surprise is that the Northwestern athletes who brought the unionization petition did not ask for the opportunity to bargain for additional compensation or direct funding -- even though athletes throughout Division I have watched their institution’s additional revenues handsomely enhance coaches’ salaries, create new staff positions and support significant overhead across athletic departments. Rather, the Northwestern athletes sought an expansion of other benefits and protections related to the traditional view that college sports are as part of the athletes’ educational experiences (and consistent with their institutions’ tax-exempt purposes). They called for enhanced academic support, broader medical coverage for all sport-related injuries before and after graduation, measures to minimize and compensate for traumatic injuries, and guaranteed four-year scholarships to protect against involuntary ineligibility.

This concern with their overall college experience, and how it affects preparation for their future lives, resonates with athletes throughout the NCAA membership, not just those at the high-revenue institutions. But, to concerned athletes, the only avenues to pursue these issues seem to have been to ask to be declared employees -- rather than students competing as athletes -- or to bring other adversarial lawsuits under laws designed to regulate commercial economic activity. Whatever one thinks of collective bargaining as a process, that avenue now appears closed. But these issues will not soon go away.

The colleges and universities that make up the NCAA have little time to come to terms with the twin challenges we’ve raised; the search for meaningful solutions to the right treatment of athletes is now part of the terrain of college sports. And unless the college sports establishment can find the correct balance quickly, and provide athletes with a meaningful and continuing voice, these issues will most likely be decided outside of the academy -- with the potential to totally and suddenly upend the world of college sports in ways that may not well suit the college and university environment.

Christine Helwick is former general counsel for the California State University system and now advises college and university clients at Hirschfeld Kraemer. Jeffrey Orleans is former executive director of the Ivy League, which competes in the NCAA’s Division I, and now advises college and university clients at Hirschfeld Kraemer.

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