Yesterday, the University of Idaho, where I am the president, accepted an invitation to join the Big Sky Conference, starting in fall 2018. The Sun Belt Conference, our current home in the National Collegiate Athletic Association's Football Bowl Subdivision, elected not to renew our membership after 2017.
Faced with the option to play as an independent in FBS, awaiting conference affiliation, or join the Big Sky, a Football Championship Subdivision league where we would gain full membership, we have chosen the road that we believe positions the football program and, importantly, the entire university, for long-term success.
Some UI alumni and supporters do not agree that the FCS is our best option. Many passionate Vandals view our place in FBS as a mark of our institution’s “prestige” and “relevance.” The University of Idaho is our state’s land-grant university, the unquestioned statewide leader in higher education.
Success on the football field should complement the prestige and relevance of our academic institution. But football affiliation or performance should not define prestige and relevance. The impact of our institution should define us, as measured by the entire experience for our student body, including our athletes; by academic excellence across the university; by sustained research, scholarly activity and creative success; and by deep engagement with communities and partnerships with industry.
Why should my university's decision about what conference to play in matter to anybody outside our institution? Because I think our situation has potential implications for dozens of universities that play big-time college football and says a lot about the state of college athletics.
This is an unprecedented move in college athletics, perhaps most similar to the University of Chicago opting out of the Big Ten in 1946. But a decision needed to be made, and made now. It is the best move for our university, and for our athletics program as part of our total university experience. The University of Idaho chooses very consciously, as the University of Chicago chose so long ago, an appropriate place for its athletic programs.
The college athletics landscape faces many challenges -- litigation about use of likeness, fundamental questions about compensation of athletes, concerns about academic integrity. The enormous revenues involved in premier events like the college football playoff and the NCAA Division I basketball tournament, as well as the growing “arms race” in major college athletics, raise many questions about college athletics.
In general, we have seen a steady progression toward higher levels of expenditure and competition -- moves from Division II to Division I, from FCS to FBS, and to ever higher expenditures by premier programs.
UI moved to the FBS level 20 years ago. Since then, we have been affiliated with four different conferences and competed as an independent. And in that time, college football expenditures have increased, and rules, such as the full cost of attendance and the number of teams required for a championship, have changed. These changes should motivate other higher education institutions to reconsider the important role of athletics.
The University of Idaho has been one of the lowest-resourced athletics programs competing at the FBS level. Despite two bowl appearances in our 20 years of FBS competition, we have had very limited success on the football field, while we have had considerable success in other sports.
Nonrenewal in the Sun Belt caused us to consider how we could continue successfully in FBS football. Nonrenewal also caused us to focus on what motivates us to participate in college athletics. Our conclusion was athletics improves UI’s visibility and provides a great shared experience for fans and students as well as opportunity and valuable experience for our student-athletes.
First, we considered whether we could compete as an independent, which we did in 2013. Few, including our fans, would argue that an independent schedule suits an institution our size in a small media market with a limited national reputation. Competing as an independent would not allow Idaho to develop rivalries; independent schedules change yearly. Recruiting to such uncertainty would be difficult. To replace lost conference revenue, Idaho would have had to play three guarantee games, in which powerhouse teams pay big fees to other teams to travel to play them. Neither the student-athlete nor the fan experience seemed desirable as an independent.
Our second consideration was seeking affiliation with a Group of 5 conference other than the Sun Belt. The Group of 5 are the five smaller, nonautonomous conferences (in contrast to the so-called Power 5 conferences): American Athletic Conference, Conference USA, Mid-American Conference, Mountain West Conference and Sun Belt Conference. Most made little geographic sense or offered no traditional rivalries for us. Initial inquiries revealed little receptivity; conferences wondered why they would bring in a team with limited competitive success and no other clear ties.
Nevertheless, should we pursue conference affiliation, which conference makes geographic and institutional sense and what financial resources would be required to make us competitive in Group of 5 football? From a geographic perspective, the Mountain West Conference would be most desirable, but the average expenditures in that league, $38 million, are twice that of Idaho at $19 million, and literally price us out.
More typical Group of 5 expenditures, such as $29 million in the Mid-American Conference or Conference USA, still far exceed those at Idaho. In contrast, Idaho athletic expenditures are typical of Big Sky schools. Our expenditures are already subsidized by our students (though to a lesser extent than at many universities), and that subsidy is limited by our State Board of Education. Should we commit to major additional expenditures from students or donors in order to seek uncertain affiliation?
As president, I asked: At what cost, FBS? We must consider the role of athletics in the institutionwide context. Athletics complements higher education in many ways. Athletes can excel in competition, succeed as students and grow as leaders. Gallup data, for example, suggest that many college athletes are prized by employers for their ability to focus and follow through on tasks and responsibilities.
All of these qualities will be nurtured in the Big Sky Conference -- as they are for participants in that conference from our other sports, such as our conference champion (and NCAA Tournament participant) women’s basketball team. If the benefits to student-athletes continue, if our fans can enjoy realistic competition, why should we continue in the FBS arms race simply to chase a small share of the revenue now accruing to Group of 5 universities from the college football playoff? Instead, we will plan for success as an FCS affiliate.
This is a reset for our football program. We believe Big Sky football will be positive for our athletes and position them to succeed on the field -- our head football coach and I expect Idaho to compete for an FCS championship in 2018. I think our fans will benefit immensely, with opportunities to cultivate meaningful regional rivalries with similar institutions, many within a day’s drive.
We can and will create an outstanding student-athlete and communitywide experience around our program, a vibrant football culture that is a great front porch for Idaho’s leading, national research university, a draw for future students and a continued source of pride for current students. And we can do it in a way that does not constrain the university and does not distract from our core mission.
Idaho chooses to leave the football arms race and focus on excellence in competition and academics. I expect success in football in the coming years, as we conclude our Sun Belt participation and find sustained excellence in the Big Sky Conference. We will tell that story near and far. But the impact of our institution is best represented by our 100,000 proud and passionate alumni whose lives were transformed by the experiences they had at the University of Idaho.
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Since 2006, the National Collegiate Athletic Association has been carefully studying the time commitments of college athletes. The findings indicate that those participating in revenue-producing sports at the most competitive levels exceed the 40-hour-per-week limit set for actual workers by the Fair Labor Standards Act. A 2015 study revealed that college athletes were spending more time at their sport than the previous 2010 study found. In fact, from an educational perspective, there is probably no more significant roadblock for college athletes seeking a meaningful education than the unreasonable amount of time they are required to engage in practice and other athletics-related activities.
Yet despite the overwhelming evidence of the need for dramatic and immediate action to scale back athletic time demands, the NCAA has determined that more study and deliberation is necessary, thus suggesting a lack of commitment to the educational primacy it espouses. Instead of taking forceful action to prevent coaches from treating athletes like hired hands, the NCAA seems more concerned that increased free time for athletes may lead to a lower-quality entertainment product.
The NCAA acts with urgency primarily when it is facing litigation, scrutiny from Congress or political activism by athletes themselves. For instance, lawyers from the antitrust division of the U. S. Department of Justice met with the NCAA Division I board of directors in 2010 to discuss the 37-year-old, one-year renewable scholarship rule and its antitrust implications. The NCAA dealt with the antitrust concerns by swiftly reviving multiyear scholarships, an action previously viewed as quixotic when reformers proposed it.
The revival of multiyear scholarships was a win for athletes whose institutions honor multiyear commitments even if these athletes are injured or turn out to be “recruiting mistakes.” However, the rule change does not protect athletes from the often unreasonable time demands of sports. At this year’s NCAA national convention, the Student-Athlete Advisory Committee’s proposals for reducing the time demands for athletes were tabled for the second year in a row.
Meanwhile, a recent study found that student-athletes in the Pac-12 conference are spending on average 50 hours a week on athletics during the season. Of the 409 athletes in the conference interviewed by Penn Schoen Berland, a strategic consulting firm, 71 percent said that sleeping is the main thing that athletic commitments prevent them from doing. It is not reaching too far to connect poorly prepared athletes and unreasonable time demands with the recent rash of academic fraud and cheating scandals like those at Florida State University, Syracuse University, the University of Louisiana at Lafayette and the University of North Carolina. An army of academic counselors and learning specialists cannot be expected to turn sleep-deprived athletes with limited academic skills into good students. It is not surprising that some academic counseling programs breed academic fraud.
Other studies have found that coaches expect college athletes to engage in athletic activities that far exceed the four hours per day and 20 hours per week of countable athletically related activities allowed by NCAA rules during the playing season. The NCAA 2010 GOALS study found that athletes in Division I football spent 43.3 hours per week in athletics-related activities.
A countable athletically related activity is any activity with an athletics purpose that occurs at the direction of or is supervised by one or more institutional coaching staff members. Activities supervised by strength and conditioning coaches are also included. A major problem with this system is that coaches heavily manage the lives of college athletes, and time demands do not include many “voluntary” hours athletes are expected to give to their sport.
Some of the athletes in the Pac-12 study reported that coaches had threatened to kick them off the team for missing voluntary activities. Other athletes said they felt under duress to participate in voluntary activities for fear of moving down the depth chart. Athletes alleged that coaches have punished an entire team because an athlete missed a nonmandatory practice or workout. Not surprisingly, more than 60 percent of Pac-12 athletes said they would have much more time to study or to engage in internships if the activities that coaches say are voluntary were truly voluntary. Travel, training for rehabilitation and dressing for practice sessions or competitions also demand significant uncounted time.
The rules regarding out-of-season mandatory athletic activities are also routinely violated in the Pac-12 conference, as well as by teams in other conferences, giving college sports the look and feel of a full-time job. According to a detailed description compiled by the National Labor Relations Board in Illinois, football players at Northwestern University begin their season the first week of August with a monthlong training camp that requires 50 to 60 hours of football-related activities a week. Once the actual season begins, players devote 40 to 50 hours a week to football-related activities.
When Northwestern qualifies for a bowl game, practices continue as usual for the month of December. Immediately following the bowl game, the players begin daily strength and conditioning workouts supervised by staff members. Players begin winter workouts in mid-January to ramp up for spring football, which begins in late February and ends in mid-April after the annual spring game. When the academic year ends, players are given a couple weeks to visit their families before returning to campus for summer workouts.
As we stated at the outset of this article, it is highly unlikely the NCAA will take serious action on this issue or any other meaningful academic reform, unless some sort of litigation, a rekindled college athlete unionization movement or an action by Congress slams it up against the wall. The Pac-12 has assembled a task force to deal with these problems. This action is to be applauded, but it is simply not enough to solve a problem of this magnitude.
There is no need to delay rectifying glaring abuse of the NCAA’s four-hour-a-day and 20-hour-a-week schedule during the season, and time demands during the spring and summer must be radically rethought. To do otherwise blurs the distinction between college athletes and employees. An athletic scholarship that supposedly pays for room, board, tuition, fees and other costs of attendance but denies athletes an opportunity to have the same educational opportunities as other students is fraudulent, and highly exploitative. In fact, it should be against the law.
Allen Sack, a professor emeritus at the University of New Haven, played football on the University of Notre Dame’s 1966 national championship football team. Gerald Gurney is an assistant professor at the Jeannine Rainbolt College of Education at the University of Oklahoma. He is president of the Drake Group and a former president of the National Association of Academic Advisors for Athletics.
In November, a series of events at the University of Missouri captivated the collective college athletic and academic world. With racial tensions at a boiling point at the Columbia campus, where students conducted protests and a highly publicized hunger strike in an effort to force the removal of then president of the system, Timothy Wolfe, some 30 Missouri football players did what no other college athletes have ever done: during the middle of the football season, they refused to participate in any practice or game until the president was removed.
College and university officials across the country began asking, can the football players do that? Should they do that? What will the university do? What happens if the football team is forced to forfeit their upcoming game against Brigham Young University where, at a minimum, the $1 million guarantee to be paid to Missouri would be lost?
Almost immediately, head football coach Gary Pinkel came out in support of his players by tweeting a photo of white and black Mizzou students standing arm in arm, captioned, “The Mizzou family stands as one. We are united. We are behind our players.” The next day, Wolfe resigned, followed soon after by the resignation of the chancellor of the Columbia campus.
Some observers praised the Missouri football players for taking a stand and having such leverage to set forth change. Others were not so impressed with this power play that placed the Missouri athletic department on center stage and at jeopardy of violating its contractual agreements to participate in an upcoming game. They wanted Missouri to take action against the athletes.
With the large-scale civil unrest occurring in 2014 regarding the police shooting of a black man in Ferguson, Mo., (just a two-hour drive from Columbia) still fresh in most everyone’s minds, and the racial tensions that were present at the university, it seems unfair to play Monday-morning quarterback and second-guess Missouri’s response to the football players’ strike. However, the events there ask the question of whether student-athletes at public educational institutions across the nation have a First Amendment right to strike.
Before social media provided an instant stage on which anyone with fast-moving thumbs and a smartphone could proclaim to millions the conditions and reasons for a student-athlete strike, students were forced to resort to old-school methods of protest. For example, in the seminal 1969 case ofTinker v. Des Moines Independent Community School District, the U.S. Supreme Court decided a case in which two high school students protested the Vietnam War by wearing antiwar armbands to school. Believing this was a disruption to the school, officials suspended the students.The students then sued the school, claiming their First Amendment rights were violated.
The Supreme Court held that the students possessed a First Amendment right to wear the antiwar armbands and that their actions were not a substantial disruption to the school’s activities. In one of its most frequently quoted opinions regarding First Amendment school cases, the court stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the court carved out a category of unprotected speech by noting that a school can discipline students for expressive activity “by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.” (Italics added.)
As a result, a student-athlete who tweets “Black lives matter” or wears a T-shirt with that caption on a campus would clearly have the First Amendment right to do so and that would likely not be considered a disruption under the standard set forth in Tinker. However, what standard would apply to student-athletes who wish to protest during a game or who go on strike and refuse to practice or play in a game?
In 1972, the 10th Circuit took up Williams v. Eaton, a case in which several black University of Wyoming football players indicated they would wear black armbands during an upcoming football game against Brigham Young University in protest of what they alleged were the religious institution’s beliefs on racial matters. In response to only the proposed protest and potential for disruption during the upcoming game against BYU, the university dismissed the players from the football team, and the football players sued the university. The 10th Circuit upheld the university’s actions, stating that they “…denied only the request for the armband display by some members of the team, on the field and during the game [and that] in these limited circumstances … the trustees' decision was in conformity with the Tinker case and did not violate the First Amendment right of expression of the plaintiffs.”
Subsequently, in 1987, a Kansas district court decided a case in which several black football players at Washburn University of Topeka decided to boycott team practices in protest because they believed the coaching staff and administration were treating them in a racially discriminatory manner. The football players were kicked off the team, and they brought suit against the university arguing, in part, that their First Amendment rights were violated. The university responded by claiming the removal of the players from the team was not a violation of the First Amendment because their actions constituted a disruption to the school.
The district court denied the university’s motion for summary judgment on the First Amendment issue, due in large part to the admission of the coach during his deposition that the student-athletes were excused from practice during their protest. Because of that admission, the court held that the boycott of football practice could not be considered a disruption under the Tinker standard.
However, we’re not in Kansas anymore, and this is not 1987. College football has become a multibillion-dollar industry, and the thought of forfeiting a college football game at the financial expense of the university because a group of student-athletes are protesting a social issue is hard for some athletic departments to stomach. Unlike the football coach at Washburn, who excused his players from practice during the protest, as well as Missouri’s football coach, who supported his players’ boycott of practice and games, a coach may voluntarily decide there is too much on the line to excuse an athlete from practice or a game when the athlete is engaging in a protest.
What would a court likely rule today if a football player refused to practice or participate in games and the coach did not excuse his missing these team functions?
The 10th Circuit’s decision in Williams with regard to the University of Wyoming football players is instructive. If it was not a First Amendment violation for the university to remove from the team the football players who wanted to wear black armbands to a game to protest their opponent’s racial viewpoints, a university would likely be found to possess the right to kick players off the football team who refuse to participate in practice or games. Under the Tinker disruption standard, it is hard to imagine how, for example, a starting quarterback who refuses to show up for a week of practice and an upcoming game because he is protesting would not be a material disruption to the team or the university.
Moreover, student-athletes are bound by their scholarship agreements, which in part, require attendance at team functions, including practice and games. If the student was missing classes to engage in protests, it would result in the removal of his or her scholarship. Similarly, the refusal of a student-athlete to participate in required practice and games because of a protest could result in the removal of the student’s scholarship. In such a case, the student-athlete’s First Amendment claim against the university would likely fail.
Other Legal Considerations
In addition to applying the Tinker disruption standard, a court may apply aGarcetti-like analysis to student-athlete speech. In Garcetti v. Ceballos (2006), the Supreme Court held that a public employee who is speaking as an employee pursuant to his or her official job duties does not have First Amendment protection. If, however, the public employee is speaking as a private citizen on a matter of public concern, the employee may enjoy First Amendment protection. Even though courts have yet to apply the Garcetti public employee speech standard to student-athletes, a court may someday decide to do that.
A court applying the Garcetti framework could conclude that a student-athlete who speaks as a private citizen on a matter of public concern -- for instance, who engages in a protest in the middle of campus after practice -- has First Amendment protection. But a student-athlete who engages in speech as a student-athlete -- for instance, who boycotts team practice or games -- is not entitled to First Amendment protection.
As for the right to strike as a unionized employee, the Northwestern University football players’ petition to be treated as employees and be allowed the right to unionize (and ultimately the right to strike) was dismissed in August of 2015 via a unanimous decision by the National Labor Relations Board. (It should be noted that even if the NLRB had determined that the football players enjoyed the right to unionize and strike, public colleges and universities would not be bound by such a decision, as the National Labor Relations Act does not apply to state agencies and the NLRB does not have jurisdiction over state entities.) As a result, a student-athlete does not have the right under the NLRA to engage in a strike, as student-athletes are not considered employees for purposes of the NLRA.
Not ‘Super Referees’
What does this all mean for colleges and universities going forward? What are the key takeaways?
An institution would be treading on thin First Amendment ice if it were to revoke the scholarship from a student-athlete who supports or encourages other student-athletes to strike or participates in a protest that is not during practice or game time. Additionally, under a Garcetti-like analysis, the student-athlete would be speaking as a private citizen on a matter of public concern and would be entitled to First Amendment protection.
But an institution would likely be able to survive a First Amendment claim, according to the Tinker disruption standard, if it disciplined or removed a student-athlete’s scholarship for refusal to practice or participate in a game, even if the absences were because the student was engaging in a protest. Student-athletes do not possess the First Amendment right to engage in materially disruptive behavior that is in violation of their scholarship agreement such as boycotting practice or games.
And a court would likely be hesitant to second-guess the actions of an athletic department that in good faith believes an athlete who misses practice or a game is a material disruption to the program. The Fifth Circuit has stated that judges are not “super referees,” and the Supreme Court has indicated, “Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” As the Texas Supreme Court concluded in 2005 in NCAA v. Yeo, “Judicial intervention in [student-athlete disputes] often does more harm than good.”
Eric D. Bentley is associate general counsel for the University of Houston System and teaches sports law as an adjunct faculty member in the university's Department of Health and Human Performance.