Taylor Branch

Responding to charges of exploitation, the college-sports body promised big reforms at a Senate hearing. But questions about pay and rights for athletes remain unaddressed.

Originally posted on The Atlantic, July 24th, 2014

On July 9, 2014, the U.S. Senate Committee on Commerce, Science, and Transportation held a public hearing entitled, “Promoting the Well-Being and Academic Success of College Athletes.” The committee questioned NCAA President Mark Emmert about growing public controversy over the NCAA’s stewardship. News stories emphasized that Emmert promised numerous reforms under heavy “grilling” from the senators.

I was among five other witnesses. Committee Chair Jay Rockefeller asked me to testify largely because of my article for The Atlantic nearly three years ago, “The Shame of College Sports.” Compiling that survey of NCAA history turned me from a casual defender of “pure” college sports into an advocate for athletes’ rights. In my view, the NCAA’s elaborate amateur code is extra-legal and bogus, if not criminal, and universities cannot honestly address conflict between sports and academics while imposing their amateur rules.

While not pretending to be neutral, I do try to be objective about the overall direction of the current debate. Three major developments came out of the hearing: All involved recognized a crisis, senators resisted the “employee” model as an alternative to the “student-athlete” status quo, and Emmert promised to overhaul NCAA governance.

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Crisis Recognition

The senators and witnesses agreed in a virtual chorus that the structure of NCAA college sports requires major reform. In addition, senators from both political parties agreed that Congress has legal authority to compel changes if necessary. “We have jurisdiction over sports,” Rockefeller said. “All sports. And we have the ability to subpoena.” Republican Senator Dean Heller of Nevada wryly called it “lightning in a bottle” that for once he agreed with his Democratic chairman. “We do have jurisdiction in this Congress over the NCAA,” he said.

If the NCAA awarded truly democratic voting representation to college athletes, it would be a lesser version of political suffrage for women and slaves.

Heller also tempered any assumption that Republicans would defend the status quo or the NCAA from government intrusion. One by one, he branded the NCAA’s proposals for wholesale change an admission of wholesale failure in practice. “If tomorrow there was a bill in front of the United States Senate that would disband the NCAA,” he said to Emmert, “give me the reasons why I shouldn’t vote for that bill.”

Emmert presented seven reforms in progress. While a few are rhetorical, most are concrete and costly enough to be very controversial within the NCAA.

First, college athletes should be guaranteed “scholarships for life” until graduation, rather than the prevailing limit of one-year scholarships renewable at each school’s discretion.

Second, athletic scholarships should be increased to cover the “full cost of attendance.”

Third, the NCAA “should always lead in the area of health and safety.”

Fourth, the NCAA “must work assertively” on sexual assault prevention and support for victims. “This is a national crisis,” he said, citing a new study that some 30 percent of NCAA schools allow their athletic departments to handle allegations of sexual assault by athletes.

Fifth, the NCAA must close “any gaps in coverage” of medical treatment, including a $90,000 deductible in the NCAA’s insurance policy for catastrophic injury.

Sixth, the NCAA must provide college athletes with “the time as well as the resources they need” for academic success.

Seventh, the NCAA must support Title IX protections for female athletes, ensuring that reforms do not come at the expense of the “non-revenue-generating sports.”

No senator opposed these proposals, although Senator John Thune of South Dakota, the committee’s ranking Republican, said they “may disadvantage smaller schools that can’t afford them.” Senator Cory Booker of New Jersey, a former Stanford athlete, said he had been “quite taken aback” to learn from a private meeting that Emmert agreed “across the board” with his criticisms of NCAA policy. “Athletes are still exploited,” Booker said. “If they blow out their knee, if they somehow don’t meet the mandates of a coach, they lose their scholarship. They don’t get their degree.”

“If tomorrow there was a bill that would disband the NCAA,” Senator Heller said, “give me the reasons why I shouldn’t vote for that bill.”

When several senators doubted the NCAA’s capacity to deliver such sweeping change, Emmert disclosed that he would rely on a united initiative by all 65 universities from the five major athletic conferences (Southeastern Conference, Atlantic Coast Conference, Big Ten, Big 12, and PAC-12). Rockefeller interrupted to ask how anyone could expect positive leadership from the very schools that have commercialized college sports so aggressively. Emmert replied that they had the essential resources. Republican Senator Dan Coats of Indiana, who represents the NCAA Headquarters in Indianapolis, said he was encouraged because these top universities could exercise power “where these major issues fall.”

Thus, on the crisis front, the hearing revealed that Emmert has formed an internal alliance with the 65 strongest sports powers, bent on pushing tangible benefits for athletes through the NCAA’s full membership of some 1,100 colleges, universities, and athletic conferences.

The “Student-Athlete” vs. “Employee” Model

Senators from both parties worried that extended benefits for college athletes, while necessary and overdue, would undermine their special status. “I think the law here is headed in a very unfortunate direction … of regarding athletes at universities more and more as employees,” stated Democratic Senator Richard Blumenthal of Connecticut. He said there was a “growing inequality and asymmetry” between the productive but restricted athletes and the colleges harvesting wealth from sports. “That is classically the reason why labor law protections have applied to individuals who are potentially the victims of exploitation,” he told the hearing, “whether it’s in garment factories or at construction sites, or universities.”

Blumenthal said the unwelcome prospect of employee status had advanced markedly since a surprise ruling in March by National Labor Relations Board (NLRB) magistrate Peter Sung Ohr, who granted football players at Northwestern University the option to seek recognition as a trade union. That preliminary decision already has shaken public opinion about the potential standing of athletes. If upheld, it would expose a gaping contradiction between law and the NCAA’s private compact among schools. The NLRB would extend collective bargaining to players who are denied individual bargaining rights. Under NCAA rules, colleges jointly agree to banish any player who seeks or receives an “unauthorized” sports benefit—however small or indirect—for “unethical” conduct.

Several senators dismissed the distant chance of unionized college athletes. Short of that great leap, they questioned the concept of regular employment. Senator Blumenthal expressed a common desire “to return truly to the model of student-athletes … because I, too, as Dr. Emmert has articulated well, value the student-athlete model rather than the employee-employer model.” Republican Senator Kelly Ayotte of New Hampshire was troubled by the idea of different treatment for athletes who do and do not produce revenue. “Some will be employees, and some won’t?” she asked. “Some will be student-athletes, and some won’t? I don’t see how that works.” An “employer-employee relationship” in college sports, observed Ayotte, would create “sort of a second category of athlete on campus. I find that bothersome.”

In my judgment, common sense was lost in a fog of terminology about jobs. Undergraduate employment is anything but complicated, fateful, or rare. Of some 20 million students enrolled in the United States, more than 10 million work part-time and another four million hold down full-time employment on the side. These numbers dwarf the 460,000 fellow scholars in college sports. Working students fill hundreds of job categories without being labeled student-waiters, student-legislators, student-librarians, student-entrepreneurs, or the like. Doing so would blur functions and responsibilities that belong rightly in separate spheres.

For six decades, the NCAA has beguiled the world with its crafted phrase “student-athlete.” This hybrid designation, repeated incessantly, aims to cement a fused image of dependent college players. NCAA officials insist that multiple roles would violate the integrity of a “student-athlete” to the point of cutting him or her in half. Their mantra, rejecting career distinctions that are essential and normal elsewhere, defines these hybrids as “students-first” in the sports industry and yet different from others in class. Colleges cooperate by assigning the external, non-teacher NCAA a growing role in the academic certification of athletes. Inevitably, public debate will sort through defensive hysteria about sports jobs on campus.

NCAA Governance

Two major announcements by NCAA President Mark Emmert went relatively unnoticed in the press. First, he declared support for imminent plans to concentrate the NCAA’s governing authority in a small fraction of the membership. Second, he said the NCAA soon may award voting representation to college athletes themselves. The latter shift, if truly democratic, is basic enough to become a lesser sports version of political suffrage for women and slaves.

“In less than a month now,” Emmert told the senate hearing, “the Division I Board will vote on a completely changed decision-making structure that will put all of the subjects we are describing here today in the hands of the 65 universities that have the largest [sports] revenue.” Those universities comprise less than 20 percent of the 350 Division I schools and six percent of the overall NCAA membership. Vesting power in them would breach Emmert’s parallel assertion that the NCAA “is a democratically governed, membership-led association of nearly 1,100 colleges and universities … Members make rules through a representative process much as you do in Congress.”

Working students fill hundreds of job categories without being labeled student-waiters or student-librarians. So why “student-athletes”?

Raw politics peeked from earnest testimony about the NCAA’s stated mission: “to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount.” Emmert declared he would use public pressure from the Senate hearing as a “cattle prod” to drive home the structural changes necessary for reform. That means convincing Division I schools to accept hegemony under the 65 sports powers able to stretch their competitive advantage by improving conditions for athletes. Their five dominant sports conferences now own the forthcoming college football playoffs outright, with no share due the NCAA, heralding a bonanza richer and more secure than the NCAA’s broadcasting contract for March Madness basketball. The ascendant conference commissioners, plus television executives in the wings, have sought greater autonomy from the NCAA with hints of secession.

Emmert made the best of being caught in a devil’s bargain. He emphasized that NCAA bylaws give him no vote or formal authority, and Rockefeller lamented the vague lines of accountability. “How can you make the case for saying you can be a participant in all this change,” he asked, “when you say they don’t have to listen to anything you say?” Democratic Senator Claire McCaskill of Missouri said she felt for Emmert’s plight, “because part of me thinks you’re captured by those you are supposed to regulate … And I can’t tell whether you’re in charge or whether you’re a minion to them.” Asking why he could not secure transparency for crucial proceedings, McCaskill made public a recent NCAA roll call in which most member schools voted—far from guaranteeing athletic scholarships “for life,” or for the four college years—to restore the 40-year ban on scholarship offers longer than one year at a time. “I think you’ll be surprised,” she told fellow senators of the strange coalitions revealed. Harvard, which does not offer athletic scholarships, voted for the one-year limit in order to reduce cost burdens on poorer schools. Sports-mad Texas, whose coaches had pushed for the original 1973 rule, voted likewise in order to maximize control over its athletes.

The senators secured no promise of transparency in college rule-making or finance, which are notoriously opaque. Emmert relieved a gloomy stretch of testimony by volunteering the prospect of NCAA membership for college athletes. Mentioning my earlier praise for the Olympic and Amateur Sports Act of 1978, in which Congress established a voting stake for active athletes on the 39 U.S. Olympic committees, he said his reform package to be voted on in August “will include full representation of students as voting members alongside the presidents and athletic directors on all the [NCAA] legislative bodies.” This news startled me.

Emmert promptly qualified his potential break with the NCAA’s paternal structure, adding that students already hold “advisory” NCAA positions. “If I might, ma’am,” he told Senator McCaskill, “the student-athlete advisory committees advised against putting in the multi-year scholarships, because they happen to agree with coaches that it was a good incentive for their colleagues to remain engaged.” He said student influence explained why some universities voted to restore the one-year limit in the roll-call she had unearthed. “Their very own student-athlete advisory committees said, ‘No, no, no, don’t give multi-year scholarships’,” Emmert testified. “‘We like one-year scholarships’.”

McCaskill looked nonplussed, beyond skeptical. “I would like to talk to those students …” she said. “I have a hard time imagining that any student thinks it’s in their best interest to get a one-year scholarship rather than a four-year scholarship.”

The hearing lurched between revelation and disappointment. Changes menace the NCAA on many fronts, driven mostly by the few universities that have built a multi-billion-dollar side business on talent captured from their undergraduates. Sound governance remains hostage to deadlock, credulity, and shell games, while everyone professes devotion to education for the young. “Congress doesn’t usually follow through,” Rockefeller said in closing. “… I mean the world works in ways that protect itself, but this is a particularly ugly one.”

Transcript of the July 9, 2014 Senate Hearing