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The Northwestern Decision: An Explainer
Your burning questions, answered

BY BRIAN PHILLIPS ON APRIL 1, 2014PRINT
Last week, the Chicago office of the National Labor Relations Board ruled that Northwestern football players are employees of the school with the right, if they choose, to form a union. This has been portrayed as a potentially revolutionary moment for college sports and as a major setback for the NCAA’s longtime commitment to not paying people. But what’s the real background here, and what does the ruling mean? Here’s a quick rundown.

OK, let’s begin at the beginning. This whole topic has gotten complicated in the last few years, but amateurism at least started out as a sincere ideal, right?

Not really, no! If you look back to the beginning of modern, organized sports, the hypocrisy becomes almost comically transparent. Take the rise of soccer in England as an example. Wealthy London gentlemen who had learned the game in upper-class boarding schools were not all that stoked, it turns out, when their teams started losing to working-class players from the industrial north. The gentlemen put their heads together and reasoned that if poor, talented athletes could make a living playing sports, then the proles could train full-time and become even more of a threat. But if the workers were forced to play for free, they’d have to squeeze practice in around 80-hour workweeks in the factories. Amazingly, the Old Etonians (no kidding, this was a powerful team in the 1880s) looked into their hearts and decided that paying players sullied the integrity of the sport.

Amateurism has never been about an ideal; it has always been about control. In the 19th century, it was used to control access to the game itself.1 In the 21st, in American college sports, it’s used to control the economy of the game, ensuring that profits go to the organizers rather than to the players whom fans are paying to watch. In both cases, it has more to do with class exploitation than with any remotely plausible argument about purity or values.

But college athletes get scholarships! What about education, the chance for personal growth and discovery, all the things the college experience is supposed to be about — doesn’t that stuff count for something?

Sure! It just doesn’t count for anything when it comes to the distribution of revenue from the massive entertainment industry that universities have erected around their sports programs. Let’s say, as a hypothetical, that you have a cousin/daughter/friend/niece named Julie. Bright kid. Fiddling around in her dorm room junior year, she invents a new kind of combustion engine that makes cars 50 times more fuel-efficient. It’s worth a billion dollars. Julie wants to sell it to GM, but — whoops — it turns out the university owns it and she gets nothing, because she’s on an engineering scholarship. Tough break, but Julie can’t really complain, right? Because at least she got the college experience.

Or say Julie has a brother named Max. Max writes a novel sophomore year that’s the biggest thing since Harry Potter. Months on the best-seller list, major movie deal, the works. Only Max not only can’t see a penny from his work — that all goes to the school; thanks, English scholarship! — he also makes the mistake of selling an autographed copy at a book fair. Boom, Max is banned from writing for a year. Not touching a pen will teach Max discipline, because Max obviously has character issues. Probably comes from a troubled home.

Now, if Max and Julie were your cousins/kids/friends/whatever, would you be OK with this deal for them? Of course not, right? In any area other than sports, where decades of rhetoric have beaten us down till we can’t see the obvious, you would say that someone who creates a product of enormous value from their own talent and hard work is entitled to many, if not all, of the rewards resulting from that product.2 You would say that any contract that worked like an athletic scholarship is padded-wallpaper insane.

This shouldn’t even be a political issue. It should be plain to conservatives and liberals alike — as it clearly would be, if you were thinking about your own career, or a loved one’s. But in sports, people committed to preserving the status quo will dragoon any noble-sounding B.S. they can into the argument, to make it seem as though the very, very simple reality here is somehow complex and multisided and nuanced. This makes it harder for the status quo to change.

The “But they’re getting an education!” line is just some noble-sounding B.S. Max and Julie can get an education and still get paid. A kid who cleans dorm bathrooms for spending money can get an education and still get paid. College athletes who make huge profits for their schools should be able to get an education and still get paid, too.

So the NLRB says Northwestern football players are employees who can choose to form a union. Why is this important?

For a few reasons, actually. First, it’s the biggest blow ever dealt to the NCAA’s self-serving amateurism rules. As blows go, it’s not quite fatal, but it’s at least staggering — picture a knight in shining armor getting clocked in the chest with a sledgehammer. It says that legally, the cheap façade that Northwestern football players are primarily seen by their university as young minds on an odyssey of learning is just that, a façade. It says that Northwestern football players are working for the school. It says that they’re thus entitled to some of the basic economic rights you and I take for granted, like the right to negotiate their compensation.3

What also matters, though, is the clarity of the explanation in the decision written by NLRB regional director Peter Sung Ohr. Ohr put aside the accumulated decades of fake idealism and rhetorical obfuscation and laid out the — again — really, really obvious facts:

• Players devote 50 to 60 hours per week to football-related work during the preseason. During the regular season, football takes up 40 to 50 hours per week.

• The university identifies, recruits, and admits scholarship players on the basis of their football ability, with academics at best a secondary concern.

• Scholarship players are possibly forbidden to miss football practice to attend class. (At least one player testified that they were; coaches disputed this; read into that whatever you want.)

• Players need permission from football coaches before they can take outside jobs. They are required to disclose detailed information about their cars to the athletic staff. They are restricted in what they can post on the Internet. They must submit their leases for coaches’ approval if they choose to live off campus.

• Players are not allowed to profit from their own images, but are required to sign away the rights to their names and likenesses to Northwestern and the Big Ten.4

• Just quoting this one directly from the report:

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.”

• Northwestern football generated revenue of $235 million between 2003 and 2012.

That is not glee club, friends; that is a job, and if you’re defining it otherwise, you have an agenda. To have the case presented this starkly, and by a federal agency no less, is a powerful thing. As Patrick Vint wrote, it was as if Ohr had “not watched college football for one minute of his life, was told the basic premise for the sport’s existence and amateurism rules, and rejected all the inherent contradictions.”

So now that this ruling is official, the NCAA is going to do the right thing, yes?

Hahahahahahahaha.

No, but for real, though.

Absolutely, yes, if by “do the right thing” you mean “release a vacuous One Shining Moment montage of a statement protesting the NLRB decision while substituting gloppy language about ‘success in the classroom, on the field and in life’ for a basic comprehension of fact.”5 If that’s the right thing, give NCAA president Mark Emmert — whose 2011 pay package, incidentally, weighed in at around $1.7 million — the Nobel Prize right now.

Is unionization really the best solution for athletes?

Short of congressional legislation, which is not going to happen, can you think of anything that could change the system faster than the threat of the players refusing to play? A union would give players two things they currently lack: a mechanism to negotiate their own deals and leverage to exact concessions from their employers. It’s how the pros do it, and it’s the only solution I’ve seen that doesn’t depend on administrators just arbitrarily deciding to be less greedy.

Some of this kind of makes it seem like you’re not really prioritizing the classroom.

Here’s how much North Carolina prioritizes the classroom. Last week, Mary Willingham, a tutor turned whistleblower who spent 10 years working with Tar Heel athletes, released a paper she says was written by one such athlete for a course designed to help players meet academic eligibility requirements. Here’s the whole text:

On the evening of December Rosa Parks decided that she was going to sit in the white people section of the bus in Montgomery, Alabama. During this time blacks had to give up there seats to whites when more whites got on the bus. Rosa Parks refused to give up her seat. Her and the bus driver began to talk and the conversation went like this. “Let me have those front seats,” said the driver. She didn’t get up and told the driver that she was tired of giving her seat to white people. “I’m going to have you arrested,” said the driver. “You may do that,” Rosa Parks responded. Two white policemen came in and Rosa Parks asked them “why do you all push us around?” The police officer replied and said “I don’t know, but the law is the law, and you’re under arrest.

Again, that’s the entire paper. It was plagiarized. The player got an A-minus in the course.

If universities are serious about educating their big-sport athletes, then they’re letting them down, and letting them down systematically. But that’s the point of the Northwestern ruling: Schools are not primarily interested in educating players. The facts just don’t fit that interpretation. The schools are interested in profiting off their athletes’ talent. Almost as if — I don’t know, as if the players are really employees, and the student-athlete concept6 is a fiction used to make them work for free.


Wait, is amateurism actually about race?

That’s a very complicated question! Critiques of the college-sports system often incorporate metaphors of slavery. Taylor Branch, for instance, in his influential essay “The Shame of College Sports,”7 wrote that “to survey the scene — corporations and universities enriching themselves on the backs of uncompensated young men, whose status as ‘student-athletes’ deprives them of the right to due process guaranteed by the Constitution — is to catch the unmistakable whiff of the plantation.”8

This comparison gains force, obviously, from the fact that many of the best athletes in major college sports are black, while most of their coaches and administrators are white. And it’s easy to detect an element of (at best) latent racism in support for the current system. An ABC News–Washington Post poll released on March 23 found that white respondents opposed paying student-athletes by a 73-24 margin. Nonwhites supported it 51-46. That is a pretty grotesquely revealing split.

That said, though? It’s not necessary to see amateurism as sublimated racism to see that it’s wrong. It’s wrong because it’s unfair. It’s unfair in America in 2014, when, in my opinion, it has a strong racial component. It was also unfair in England in 1878, when everyone involved was a mustachioed white man named Gilbert.

Amateurism is about people with power controlling people with talent. It contorts to fit any number of agendas. If the slavery metaphor makes you uncomfortable, ask yourself whether you would like to spend the next few years working 50-hour weeks for room and board and the chance to sit in on some French classes while your boss made millions off your efforts. If not, you are against amateurism. It’s that simple.

Fine, but do we have to pay squash players? And what happens to athletes’ student status if they’re also employees? Can they be fired? What if some teams vote to unionize and some teams don’t? And what about tax implications? What about Title IX?

I have no idea! One of the neat strategies you’ll see the NCAA’s defenders deploy in the wake of the Northwestern ruling is to start throwing out a million practical questions that have yet to be resolved, as though, if you can’t immediately answer all of them, they must be totally impossible to solve. “I don’t know what happens to their meal cards!” you’re supposed to cry in this situation, throwing your hands up to the heavens. “Therefore change is futile and I have no choice but to agree that the student-athlete system is the key to success in the classroom, on the field, and in life!”

But this is ludicrous. Reform of a big organization like the NCAA is inevitably going to involve a lot of tough questions. Maybe Ultimate Frisbee at Middlebury isn’t a job in the same way basketball at Kentucky is. Maybe some provision will be necessary to make sure women’s sports are treated fairly. But you know what? People build multinational corporations and reasonably functional democracies. People deal with trickier problems than college-sports revenue distribution all the time. Raising objections as though the mere existence of practical difficulties shuts down the conversation is the stalling tactic of an exhausted debater. It’s the move of someone with nothing left to defend.

So but does this ruling mean college athletes are going to get paid?

At this point? Not even close. We could be in for years of appeals before this is even settled for Northwestern football players. Right now it has no force for anyone else, and the university is fighting it with all the moral passion of a 16-year-old whose parents just uninstalled his µTorrent.9 Even if it holds up, the NCAA’s own regulations would have to be gut-renovated before unionized, salaried players were deemed pure enough for the sacred turf of the Chick-fil-A Bowl.10 Plus, there’s a fun quirk in American labor law that exempts public schools from the NLRB’s jurisdiction. So while your basic tailgating meccas like Yale would be forced to comply, your lesser sports minnows — Alabama, Texas, Florida — would not.

This is why the language of this decision matters so much. The case for amateurism rests on a lot of Oz the Great and Powerful theatrics designed to distract your attention from what college sports actually is. But Ohr saw through all that; calmly and clinically, he explained the reality. The process, such as it is, will go on. Thanks to Ohr’s decision, though, the man behind the curtain is now standing in full view, with his thumb on his tongue, counting twenties.

The Football Association in England finally sanctioned professionalism in 1885, after a rift that nearly split the organization; however, players labored under draconian wage limits until 1961. ^
This is not a perfect metaphor, because Julie and Max are doing their creating in isolation, whereas college athletes need organized competitions to showcase their ability. But that’s a difference of degree, not of kind. In other words, the competition-organizing bodies should be entitled to some percentage of revenue, but that percentage is not 100. You could also argue that if a Julie-like scientist invented her engine in a university lab, rather than in her dorm room, the school might in fact own the patent. (This gets complicated.) But the Julie-like scientist in that scenario is presumably an employee who’s pretty well compensated for her work already — and if not, isn’t that seriously messed up? ^
Here’s a link to the full text of the ruling. ^
Image rights are also the central point of contention in former UCLA basketball player Ed O’Bannon’s lawsuit against the NCAA, which goes to trial in June. O’Bannon noticed that it was kind of weird that while he was appearing in popular video games, someone else was making all the money. ^
The NLRB did not find that “the Northwestern football team may vote to be considered university employees”; it found that they are university employees. This is kind of a big difference. ^
Which, you might remember, was invented by the NCAA in the 1950s as a way to avoid paying worker’s comp to injured athletes. ^
The Atlantic, 2011. ^
Branch went on to argue that the better metaphor was perhaps colonialism: “a system imposed by well-meaning paternalists and rationalized with hoary sentiments about caring for the well-being of the colonized” that is nevertheless unjust. ^
YOUNG MAN STOP DOWNLOADING OUTSIDE LINEBACKERS AND COME TO DINNER THIS INSTANT. ^
Which divides about $7 million between the participating teams, by the way. ^
FILED UNDER: COLLEGE SPORTS, BRIAN PHILLIPS, NCAA, NORTHWESTERN


BRIAN PHILLIPS is a staff writer for Grantland.

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