Not to put too fine a point on it, but college sports amateurism is dead. Undead, actually. A zombie shambling across America's campuses, gorging on television money and athletes' economic rights, awaiting a final bullet to the head. In ruling last week that Northwestern University football players qualify as school employees and can unionize, the Chicago district of the National Labor Relations Board essentially cocked the trigger, beginning the end of the system as we know it.
And that's true even if players don't end up unionizing.
For decades, the National Collegiate Athletic Association and its member schools have conspired to fix the price of athletic talent at the value of a college scholarship, and not a dollar -- or extra plate of pasta -- more. No booster money. No shoe contracts. No negotiating for the best possible deal. No acting in the manner of a coach or administrator, basically. Unlike other cartels, the NCAA has gotten away with its collusion, enjoying a perpetual Get Out of Jail Free card from both the federal judiciary and the public at large. Why? Blame amateurism, the hallowed American principle of thou shall not be allowed to be paid thy worth, provided thou art an athlete with a textbook in thy backpack, the philosophical bedrock of a campus financial order rooted in
a baldfaced desire to avoid paying worker's compensation two largely untested assumptions:
1. Despite the fact that there is a multibillion-dollar market for college football and basketball players, said players are not actually working during the Fiesta Bowl and the Big East Tournament and every day before and after, and therefore are not entitled to the same basic economic rights and protections as the rest of us;
2. College sports cannot be considered work because they are first and foremost educational activities populated by non-employee "student-athletes," for whom the holding of a paid campus job catching footballs would be fatally antithetical to simultaneously taking classes on said campus, because of Athenian values or something, again unlike everyone else in the entire world.
No matter what ends up happening with the Northwestern unionization bid -- it could fail on appeal; it could end up before the Supreme Court; it could take years to resolve -- the true significance of NLRB regional director Peter Sung Ohr's ruling isn't just that he determined big-time college football players to be employees under the common law definition of the term. It's that in order to make his ruling, he had to test amateurism's underlying assumptions -- both of which he found utterly lacking, in specific, unassailable detail, the way anyone unaddled by a century of college sports romanticism, propaganda and semantic Jedi mind-tricking would.
This bodes poorly for the NCAA's future.
Start with work. Spoiler alert: Big-time college football qualifies. Here's the common law definition of an employee: a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment. Services. Contract. Control. Payment. That's the list. Four criteria. Not particularly complicated. All apply to Northwestern football players. Do they provide services for their school? Absolutely. According to Ohr, Northwestern's football team generated revenues of approximately $235 million between 2003 and 2012, plus the "immeasurable positive impact to Northwestern's reputation a winning football team may have on alumni giving and increase in number of applicants for enrollment at the University." (Actually, some of that positive impact is measurable). Was that money gifted to Northwestern by television networks and ticket-buying fans as an act of selfless, education-first charity? Nope. It was forked over for football, stoked by the desire to be entertained by a group of skilled performers.
Performers whose day jobs, quite frankly, are far more demanding than mine. And probably yours, too.
During August training camp, Ohr reports, Northwestern football players spend 50 to 60 hours a week on football-related activities. That number drops to 40-50 hours a week during the season and before bowl games, and to 20-25 hours a week during spring football and summer workouts. In other words: college football is mostly a full-time job, and one that involves lots of overtime. It's also physically demanding, requiring daily running, near-daily weightlifting sessions, frequent travel, after-hours study, a not insignificant amount of getting hit in the head and early-morning physical therapy sessions to treat workplace injuries that come from getting hit everywhere else.
Here's Ohr on a typical day at training camp:
...the athletic training room was open from 6:30 a.m. to 8:00 a.m. so the players could receive medical treatment and rehabilitate any lingering injuries. Because of the physical nature of football, many players were in the training room during these hours. At the same time, the players had breakfast made available to them at the N Club. From 8:00 a.m. to 8:30 a.m., any players who missed a summer workout (discussed below) or who were otherwise deemed unfit by the coaches were required to complete a fitness test. The players were then separated by position and required to attend position meetings from 8:30 am. to 11:00 a.m. so that they could begin to install their plays and work on basic football fundamentals. The players were also required to watch film of their prior practices at this time. Following these meetings, the players had a walk-thru from 11:00 a.m. to 12:00 p.m. at which time they scripted and ran football plays. The players then had a one-hour lunch during which time they could go to the athletic training room, if they needed medical treatment. From 1:00 p.m. to 4:00 p.m., the players had additional meetings that they were required to attend. Afterwards, at 4:00 p.m., they practiced until team dinner, which was held from 6:30 p.m. to 8:00 p.m. at the N Club. The team then had additional position and team meetings for a couple of more hours. At 10:30 p.m., the players were expected to be in bed ("lights out") since they had a full day of football activities and meetings throughout each day of training camp...
Does that sound like summer camp? Or does it sound like a job? Another example: In order to play a 2012 away game against the University of Michigan, Ohr, writes, Northwestern's players boarded team buses early Friday morning and didn't return to their campus until late Saturday night -- a 24-hour-plus period that contained team meals, walkthroughs, position meetings, warm-ups and actual game play, yet only counted as 4.8 hours of "countably athletic related activity" per NCAA guidelines that are intended to limit time spent on sports. (In Ohr's report, said association guidelines are both loophole-ridden and routinely ignored, the equivalent of overtime laws at many workplaces).
Let's move on to control. This one is indisputable. Coaches run players' lives, both at and away from the office. Unlike other students, football players are required to live in on-campus dorms as underclassmen; upperclassmen may live off campus, but only if head coach Pat Fitzgerald reviews and approves their leases. Players are prohibited from swearing. Prohibited from denying coach "friend" requests on social media, so that coaches can monitor their personal communications. They are subject to drug testing. They have to give their coaches detailed information about the cars that they drive. They can't get outside jobs or speak to the media without athletic department approval. They're not allowed to profit from their image or reputation -- for example: selling autographs and gear, and/or trading them for tattoos -- but are required to sign a release that allows both Northwestern and the Big Ten to use their names, likenesses and images for any purpose. During the regular season, the players must wear a suit to home games and team-issued travel sweats to away games, and also stay within a six-hour radius of campus prior to all games. They're even forced to give their flight itineraries to their position coaches when flying home to visit family.
Understand: none of this is informal. It's written out in a handbook. Also put in writing? The contract athletes sign with Northwestern in order to receive their scholarships:
...when Head Coach Fitzgerald makes a scholarship offer to a recruit, he provides the individual both a National Letter of Intent and a four-year scholarship offer that is referred to as a "tender". Both documents must be signed by the recruit and the "tender" describes the terms and conditions of the offer. More specifically, it explains to the recruit that, under NCAA's rules, the scholarship can be reduced or canceled during the term of the award if the player: (1) renders himself ineligible from intercollegiate competition; (2) engages in serious misconduct warranting substantial disciplinary action; (3) engages in conduct resulting in criminal charges; (4) abuses team rules as determined by the coach or athletic administration; (5) voluntarily withdraws from the sport at any time for any reason; (6) accepts compensation for participating in an athletic contest in his sport; or (7) agrees to be represented by an agent. The "tender" further explains to the recruit that the scholarship cannot be reduced during the period of the award on the basis of his athletic ability or an injury. By July 1 of each year, the Employer has to inform its players, in writing, if their scholarships will not be renewed...
As Ohr writes, the "tender" serves as an employment contract, spelling out the terms and conditions under which signees will receive payment. Make no mistake: price-fixed or not, college athletes are paid. They do not receive a "free" education. Northwestern football players are not given scholarships for tuition, room and board worth as much as $76,000 a year because Fitzgerald is in a Santa Claus state of mind. They're given scholarships in exchange for services rendered. Football services. Item No. 5 above makes this plain: quit the team, no more scholarship.
Oh, and why are Northwestern's football players on campus in the first place? Ohr explains:
...the record makes clear that the Employer's scholarship players are identified and recruited in the first instance because of their football prowess and not because of their academic achievement in high school. Only after the Employer's football program becomes interested in a high school player based on the potential benefit he might add to the Employer's football program does the potential candidate get vetted through the Employer's recruiting and admissions process...
Add it up, and there's no denying the obvious. Football is work. Northwestern's players meet the common law criteria to be considered employees -- and unless the situation is vastly different at places like Stanford and Vanderbilt, so do the nation's other private school scholarship athletes. (For that matter, public school scholarship athletes also qualify as employees, though their potential unionization is matter of state law and varies accordingly). Of course, this idea -- correction: this reality -- is anathema to the NCAA, which has built an entire gold-plated economy on the foundational lie that college athletes are not and cannot be employees, because they are not and cannot be compensated for athletic labor. Not when they're amateur "student-athletes," a bunch of plucky, adorable kids who just happen to be playing sports as part of their wonderful (and free!) educations.
Problem: Ohr's ruling makes it pretty clear that student and athlete are two different things. That football and school have nothing to do with each other. Coaches are not professors. (Hell, they're not even adjuncts). Players do not receive academic credit for games, film study, weight training or anything else related to football. Regardless of major, they are not required to play football to obtain a degree. They may learn life lessons in character, dedication, teamwork, and so on -- life lessons that also can be learned via, you know, living -- but as Ohr makes clear, none of that shows that "their relationship with the employer is primarily an academic one."
To the contrary, playing football -- that is, working at a intense, draining, full-time and then some job -- is arguably detrimental to classroom learning. How so? Simple. Time, effort and focus devoted to football means less time, effort and focus devoted elsewhere. And if football is the currency that pays for your schooling -- like a job at a campus bookstore, only with ACL tears -- well, then, something's gotta give.
Kain Colter, the former Northwestern quarterback leading the unionization movement, testified that he entered the university hoping to go to medical school. During his sophomore year, he tried to take a required chemistry class. He says both his coaches and his academic advisors discouraged him from enrolling, because it conflicted with morning football practices. He later took the class during a summer session, falling behind other pre-med majors, and ultimately switched his major to psychology because it was less demanding. None of this was unusual: Colter also testified that scholarship players were: (a) not allowed to miss football practice during the regular season if they had a class conflict; (b) told by their coaches and advisors that they could not take any classes that started before 11:00 a.m., because they would conflict with practice; (c) only allowed to enroll in summer session classes that were six weeks long, because eight-week classes conflicted with the start of training camp.
Here's Ohr again, this time on the academically-enriching experience of an away game:
...the football team's handbook states that "when we travel, we are traveling for one reason: to WIN a football game. We will focus all of our energy on winning the game." However, the players are permitted to spend two or three hours studying for their classes while traveling to a game as long as they, in the words of Head Coach Fitzgerald "get their mind right to get ready to play"...
None of this makes the NCAA and its member schools wholly nefarious. It just makes them dishonest, hypocritical, exploitative and cheap. (Oh, and also in almost certain violation of the Sherman Act.) Like the National Football League with regards to football-induced brain damage, the association refuses to call something that quacks and waddles and wears a shirt with no pants a duck, because admitting the truth means paying market rates, and why do that when you can get an amateur discount? Instead, Emmert and company keep doubling down, lying and spinning and projecting a reality distortion field, counting on the courts and the public alike to continue thinking about March Madness without, you know, thinking about March Madness. Consider the NCAA's response to Ohr's ruling, which was as laughable as it was typical:
…the NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees.
We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.
Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student-athletes -- 99 percent of whom will never make it to the professional leagues -- focused on what matters most -- finding success in the classroom, on the field and in life...
Um, NCAA lawyers and public relations writers? The NLRB didn't decide that the Northwestern players can vote to be "considered" employees. It found that they are. It's not a "notion." It's a matter of fact, based on evidence and clear, open eyes. Ohr saw through amateurism. He saw through the association's bulls--t. And if the NCAA's only real response is a retreat into airy sentimentalism -- love of the sport and what matters most and the tired, discredited legal fiction of the student-athlete -- then how long before the rest of us do the same?