Northwestern University football players are not school employees. They can't be school employees, because they're students. Same as everyone else on campus. Oh, and besides, college football is just another totally voluntary and completely noncommercial educational activity that budding young scholars do on the side, the better to learn valuable life lessons and experience sheer, hobby-pursuing joy. Much like competing on the debate team. Or singing acappella. Or writing for the student newspaper.
Whatever floats your academic boat, really.
Please note: all of the above is not derived from the unreleased Disney film Tinkerbell on Campus: Wishing Makes It So. To the contrary, it's a real world view articulated by real-world lawyers, the core argument of Northwestern's formal appeal of a recent ruling by a regional director of the National Labor Relations Board that classified the school's football players as employees. Filed last Wednesday with the NLRB's national office in Washington, the appeal is a full-throated repudiation of the notion that college football is in any way a business involving athletic labor with market value.
To the contrary, Northwestern argues, football and other sports are simply part and parcel of the school's true business. The business of educating America's youth. And if you buy that line of reasoning -- if you fully follow it to its logical end -- then two things become clear.
1. The National Collegiate Athletic Association's promulgation and enforcement of athletic amateurism is arbitrary and unfair.
2. More to the point, it's unnecessary.
Take a step back. In deciding that Northwestern football players are, in fact, employees -- and therefore entitled to vote for unionization -- NLRB regional director Peter Sung Ohr relied on the common law definition of the term "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. Do Northwestern players fit all four criteria? Ohr said yes, citing the following evidence in his decision:
Northwestern football players spend 50 to 60 hours a week on football-related activities during training camp; 40-50 hours a week during the season and before bowl games; and up to 20-25 hours a week during spring football and summer workouts. Meanwhile, the school'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."
Northwestern 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. They are prohibited from swearing and from denying coach "friend" requests on social media, so that coaches can monitor their personal communications. They are subject to drug testing, and 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. Nor are they 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.
Northwestern football players are recruited for their football skill and sign a contract with the school -- called a "tender" -- spelling out the terms and conditions under which they receive scholarships for tuition, room and board.
Said scholarships are worth as much as much as $76,000 a year.
Pretty straightforward, right? Not so fast, counters Northwestern. In its NLRB appeal, the school insists that Ohr's analysis is flawed. Flat-out wrong. To begin, the school accuses Ohr of professional malfeasance. Rather than weighing testimony, evidence and existing law to answer the narrow question of Northwestern football players qualifying as employees -- in other words, doing his job -- Ohr "set out to alter the underlying premise upon which collegiate varsity sports is based." He was biased. Out to get all of college sports. Had a predetermined conclusion about the case, and twisted the facts to fit. Or so says Northwestern.
Of course, the school doesn't produce any actual evidence of said predetermination: no memo, no recorded conversation, no prior published jeremiad against college sports. But whatever.
Ad hominem attacks aside, the bulk of Northwestern's appeal is devoted to demonstrating that: (a) college football is a noncommercial educational enterprise; (b) Northwestern football players are first and foremost students; (c) as such, ruling that football players are school employees is as absurd as ruling that debate team members are school employees. As the appeal puts it:
… playing collegiate football, particularly at Northwestern, is an entirely voluntary activity on the part of the student-athletes who choose to participate while, at the same time, obtain the benefit of a world class education …
… in fact, Northwestern recognizes that education happens in more than just the classroom. And it most certainly believes education takes place on the athletic field …
How are Northwestern football players actually students -- and only students -- who just happen to spend a lot of time hitting each other in the head for an outside-the-classroom education that a lot of people just happen to like paying money to watch? The school's appeal counts the ways. Northwestern football players spend time in class, study hall and doing academic work. What's more, they "consistently maintain an exceptional cumulative GPA average of over 3.00." Fact: You can't have a GPA of 3.00 -- or a GPA of anything -- unless you're a student. (Also note the redundant use of the word average, but then again, did any of the school's lawyers play football?)
Contrary to Ohr's ruling, Northwestern claims, players are not "initially sought out, recruited and ultimately granted scholarships because of their athletic prowess on the football field." Nuh-uh. They are recruited with a focus on academics -- "just like recruitment of all Northwestern undergraduates," the appeal cheerfully and sincerely notes -- and only after their scholastic bonafides are established do football coaches coincidentally and casually inquire about their interest in after-class varsity sports. You know, if there's time amid all that student-y studying. Why, you look like a strapping young fellow! Have you any desire to join our campus foot-ball club?
In his ruling, Ohr found that "players are sometimes unable to take courses in certain academic quarters due to conflicts with scheduled practice" and "players are controlled to such a degree that it does impact their academic pursuits to a certain extent." To support those findings, he cited testimony from former Northwestern quarterback Kain Colter, who said he chose to change majors from pre-med to psychology because the former conflicted with football. Au contraire, argues Northwestern, noting that in the last two years, school football players have pursued over 20 different majors, some with degrees in subjects like mechanical engineering and biological anthropology, and seriously, how could that ever happen if football wasn't part of the student experience?
Likewise, Northwestern says, football players are subject to rules -- you could call them "control," I suppose, if you're a biased ne'er-do-well like Ohr -- the same way many students in the school's "regular student population" (note: air quotes were used in the text of the appeal) are subject to rules. Take coach scheduling control, which according to the appeal is:
… no different than the type of scheduling and control that other educators at the University have over enrolled students. Just as a football student-athlete is free to choose whether to participate in the football program, a student is free to choose a particular course of study. Once chosen, certain requirements of both endeavors (the co-curricular athletic and the curricular endeavor alike) must ultimately be met. As Colter himself acknowledged, once he selected Psychology as a course of study, there were certain classes he was required to take. Those classes were chosen by the department and were offered on days and at times decided upon by academic personnel, without input from Colter. Once enrolled in a course, Colter, like any undergraduate student, was subject to the syllabus which detailed what material would be covered during which period of time. His instructors selected the course material, decided what assignments to give and when they would be due, decided when to administer exams and what material would be covered in exams, and had the authority to discipline students for infractions, such as being late or failing to turn in assignments. Those "restrictions" and "scheduling control" are all part of the life of a student …
See? Football and class are basically the same. Sure, the former involves multi-million dollar broadcast contracts, weekend road trips and an on-site ambulance, while the latter features actual academic credits, letter grades that don't come from Monday morning all-11 film review and credentialed scholars teaching in recognized fields of study. Tom-a-to, Tom-ah-to.
Both are just part of the crazy, mixed-up life of a student. The freely-chosen life of a student! Because football, Northwestern insists, isn't extracurricular. It's co-curricular, what the school calls a "developmental environment" that "promotes social, intellectual, personal and professional growth." Maybe the occasional concussion or catastrophic knee ligament tear, too. But mostly that other stuff. And since Northwestern sees "participation in intercollegiate athletics as part of the educational process," with "high level competitive athletics teach[ing] valuable and transferable life skills that Northwestern hopes to transmit to all of its students," there's no way football can also be a commercial business.
Indeed, the school's appeal sets the record straight on Ohr's "faulty," "tortured," "jaded" and "inaccurate" pro-employee ruling:
… Northwestern is a premier academic institution recognized among private American research universities for its high quality educational programs. If in a "business" at all, Northwestern is in the business of providing a world-class education to its undergraduate, graduate and professional school students by offering the broadest range of academic and co-curricular offerings. The University is not in the business of football …
Boom. That's world-class education, not world-class touchdown-making. Or contract-creating. Ohr ruled that National Letters of Intent and accompanying scholarship tenders are "employment contracts" that give Northwestern football players "detailed information concerning the duration and conditions under which the compensation will be provided to them." But how can that be the case, the appeal counters, when there's no compensation in the first place? When scholarships are simply what the school dubs "offers of financial aid" that just coincidentally happen to be offered to prospective students recruited for academic merit who just coincidentally may want to freely choose to play football for Northwestern?
As the school's lawyers point out, students who receive need-based financial aid instead of football scholarships also have the duration and conditions of their aid spelled out in award letters. If they accept, are those students signing employment contracts? Of course not. Students are students; aid is aid; if football was work and football players were employees, their
compensation for playing aid for studying would be processed through university payroll and treated as compensation for tax purposes. But it isn't. Why? Because education, says Northwestern. A little something that jaded college sports saboteur Ohr willfully pretended not to see.
Granted, football scholarships are cancelled if football-playing students quit playing football. According to the school, however, that doesn't render athletic aid any less academic. Again, from the appeal:
… while it is true that the scholarship will be canceled if the student-athlete quits the team, that does not make it compensation for services under a contract for hire. Similarly, the debate student who stops participating in debate tournaments stands to lose his scholarship …
Ohr points out that Northwestern football earns millions of dollars annually in direct revenue, and an incalculable amount of goodwill and publicity for the school. The school maintains that those earnings aren't commercial. They're -- you guessed it -- educational. They go right back into the school's co-cirricular athletic department, which in 2012-2013 spent nearly $1 million on recruiting players already previously recruited to Northwestern on the basis of academic skill; over $16 million on non-compensatory aid for those students; and $19.6 million on academic-related expenses like administration, media and marketing. Every dollar, the school says, fulfills a deeply-held "commitment to offer a world-class educational experience."
Now, maybe that all sounds a bit nutty. Perhaps big-time college football -- home to both the Beef O'Brady's bowl and University of Texas athletic director Steve Patterson, who just the other week discussed expanding his school's brand by playing games in Dubai -- seems like an obviously commercial enterprise. Perhaps the idea of a student having a campus job playing football while still going to class -- and, hell, chewing gum at the same time -- doesn't strike you as something out of a fantasy novel. Did you say work-study, sorcerer? What dark magick is this?
For argument's sake, suppose Northwestern is exactly right. Suppose football players can't be employees because football players are students, and students can't be employees, and college football itself is a voluntary, noncommercial, co-cirricular activity that often involves a hefty and completely coincidental individual academic subsidy. Suppose that, in the words of the school, "the football activities are inextricably intertwined with the educational experience."
If all of that's the case, then ask yourself this: why is amateurism permitted, let alone encouraged?
Via amateurism, all NCAA schools collude to limit the total value of athletic scholarships -- which, remember, are not compensation for athletic skill and performance, but rather just another form of academic financial aid -- to the cost of room, board and tuition. Doesn't that seem arbitrary? Absurd? Downright contrary to the pursuit of a world-class education? After all, many students receive stipends in order to allow them to focus on their studies. Those stipends are not subject to a nationwide cap. To the contrary, schools offer competitive packages to attract, keep and support the very best academic talent, packages that go above and beyond athletic scholarships. Why? Universities know that academics are demanding, even hard, and that working 20, 30, 40 or more hours a week to make ends meet while attempting to graduate can be counterproductive.
Given the above, why are student-volunteer-athletes pursuing degrees in mechanical engineering and biological anthropology systemically shut out from the same educational benefit?
In its NLRB appeal, Northwestern notes that if student-volunteer-athletes are considered employees, then their scholarships could potentially be taxed as income, thereby making education more expensive. Maybe even too expensive. Yet right now, the amateurism-capped value of athletic scholarships is often less than the actual cost of attending school, creating a shortfall that is sometimes filled with food stamps and Pell Grants. Federal subsidies. According to Jon Solomon of AL.com, the University of Alabama had 131 athletes receive $566,495 in federal need-based financial aid in 2012-13, with football players accounting for 51 percent of the total. Eliminate amateurism, and the school could have increased the size of its athletic scholarships and picked up that tab on its own -- perhaps by not paying its football coaches a combined $1.46 million in bonuses in 2012.
Forget shortchanging education. Why are schools conspiring to place an unnecessary financial burden on taxpayers?
Then there's the matter of outside income. Amateurism prohibits many forms of it. This makes no sense. Not in a purely educational setting. When I was an undergraduate at Georgetown University, I volunteered at the student newspaper. The newspaper did not declare me ineligible after I published an article for pay in The Washington Times. Nor was I subject to sanction after I won a cash award originally instituted by a wealthy newspaper publisher -- an ink-stained booster! -- for writing a series of articles. Instead, I pocketed some money and my educational experience was enhanced. And I'm hardly an outlier. Music students can earn money playing gigs. Creative writing majors can publish. Computer science majors can create billion-dollar apps -- and if they create them in class, they can share in the profits with their schools. Actress Natalie Portman filmed a Star Wars prequel while attending Harvard University. Actress Belle Knox is putting herself through Duke University via, uh, another type of filming. Every college student in America is both free and encouraged to earn money from their talents. Except students who volunteer for sports. When the Dr. Phil Foundation buys New Orleans public transportation system tokens for students attending literacy and GED classes, it's considered charity; when so-called "bag men" arrange for Southeastern Conference college students to have automotive transportation, it's considered a crime.
Last year, I wrote about former University of Richmond walk-on basketball player Jonathan Benjamin, who turned a summer school business class project into his own sports apparel company, Official Visit Activewear. Benjamin started the company with his own money. Unable to afford professional models, he took pictures of himself in the clothes he designed, and then used those pictures to promote his company on social media. The school promptly declared him ineligible to play volunteer varsity basketball, in violation of NCAA amateurism rules -- specifically, bylaw 12.4.4, which governs athlete self-employment:
A student-athlete may establish his or her own business, provided the student-athlete's name, photograph, appearance or athletics reputation are not used to promote the business.
Of course, some people argue that amateurism rules are necessary. That they perform a similar function to salary caps and player drafts in the National Football League and National Basketball Association. That without amateurism, volunteer college sports would lose competitive balance. Big schools and rich boosters with more money to spend on scholars with coincidental football or basketball talent (think Alabama or the University of Kentucky) would end up dominating schools with fewer resources to attract those same scholars (think Troy State or Ball State Universities), resulting in a less exciting sports entertainment product.
Guess what: that might be true. Only it doesn't matter. Unless you're a cynic like Ohr. As Northwestern makes clear in its brief, college sports do not exist to provide spectacle and gambling fodder for boozy student bodies and entertainment-starved adults, because college sports aren't commercial. They're co-curricular educational activities. Wins and losses aren't important. Nor is competitive suspense and intrigue. When Northwestern's players take the field alongside fellow scholars from the University of Michigan or Ohio State University, it's not a crass, NFL-style professional football game. It's a life lessons seminar:
… Northwestern is in the "business" of holistically educating its students by offering the widest range of academic and co-curricular programs. It is not in the business of football, which is just one of 480 co-curricular activities to provide its students with the broadest possible educational experience, which includes comprehensive attention to academic, personal and career pursuits. That the football program may attract more interest, and thus more revenue, than other co-curricular activities at Northwestern does not convert the avocational nature of participation in the program into a vocation …
Exactly. College sports are marching band. Chess club. A wholly voluntary part of a broad educational experience. By Northwestern's own logic, they don't need special economic restrictions, especially when those restrictions limit the ability of some non-employee students to pay for their own schooling, inside and outside the classroom. At one point in the school's NLRB appeal, its lawyers write that "in the end, the student chooses his own commitment level; some select heavy course loads and some decide to also compete in athletics at a collegiate level and even accept the benefit of tuition remission to offset the cost of the education."
In other words: these are students. This is education. One size does not fit all. So why make an exception for amateurism? Why not have NCAA members choose their own financial commitment levels when it comes to students who play sports, and let interested third parties do the same? If Northwestern is contesting Ohr's ruling in good faith -- and not to prop up a rights-denying, morally-bankrupt college sports economy that increasingly resembles a house of cards -- then the school should take its own advice.