Taylor Branch

The moment for such a push may not be far off. Public support for the NCAA has declined in recent years and, what’s more, the current system has been the recipient of some less-than-indulgent court rulings. In August, the National Labor Relations Board overturned an earlier decision that would have allowed Northwestern University football players to vote on forming a trade union. Relieved NCAA officials cheered “the right call,” but the NLRB pointedly reserved judgment about whether college players should be legal employees, stressing that jurisdiction was declined largely because labor law does not apply to the many public universities competing with Northwestern in Big Ten sports. The NLRB deliberations raised a startling prospect: that college athletes could achieve union rights even while being denied the ordinary ones that most Americans hold individually, such as the right to seek compensation for work, something NCAA rules strictly forbid.

In September, NCAA lawyers won a mixed reprieve on its rule that college players must forever surrender any right to compensation from sports merchandise bearing their names and images. In the landmark O’Bannon case, the U.S. Court of Appeals for the Ninth Circuit did find the NCAA too restrictive under antitrust law, but the decision overturned a lower court’s corrective order mandating that new earnings be limited to $5,000 per player per year and be sequestered until graduation lest the extra money interfere with an athlete’s studies. While deferring on the question of whether athletes can receive any compensation beyond the costs of attending school, the judges opined that “courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules.”

College administrators are preparing reluctant lines of retreat. Notre Dame’s president John Jenkins told The New York Times that Notre Dame would support changes in NCAA rules to allow athletes to sell their autographs or otherwise make money of their fame—provided that Notre Dame was not involved. “That seems to be where we are going,” he said. Similarly, the Pac-12 has proposed an amendment allowing players to pursue business opportunities so long as they do not identify or market themselves as athletes.

Disputes over money are straining the NCAA’s unity. Early this year, the five major sports conferences (the Atlantic Coast, Big Ten, Big 12, Pac-12, and Southeastern) obtained “autonomy” to promulgate rules that would permit a modest cost-of-living scholarship raise for athletes. These five major sports conferences own the new football playoff system, reaping already an extra $500 million above their $2 billion in annual television revenue. They share none of this aggregate bonanza with the NCAA or its thousand member schools. For now they do let the NCAA collect television’s $770 million annual payment for March Madness, which supplies nearly all NCAA income, but leaders of the five conferences raised a veiled threat to leave and take the basketball tournament with them.

State lawmakers, meanwhile, have stretched in vain to devise legal reinforcement for the economic constraints imposed by the NCAA’s compact among member schools. In 2014, when the NCAA suspended star running back Todd Gurley for four games for selling his autographed jersey, Georgia legislators channeled popular fury. “It hurt our season,” objected Representative Barry Fleming, introducing a criminal bill to incorporate NCAA rules indirectly by scapegoating any sports agent who “entices” an athlete to break them. Fleming lamented that Gurley’s mother “didn’t have funds to properly repair the roof on the trailer she raised him in,” but his bill sought recompense only for Georgia. The “Todd Gurley Law,” approved overwhelmingly in May 2015, authorizes the state to prosecute and sue an offending sports agent for the “loss of scholarships, loss of television revenue, loss of bowl revenue, and legal and other fees…” Although this untested recourse may be wildly impractical, and unconstitutional, the exercise allowed lawmakers to express their frustration with the NCAA.

Pressure has exposed cracks in the NCAA’s professed devotion to the welfare of college athletes. Under prodding from President Theodore Roosevelt, colleges formed the organization in 1906 with a mission to curtail severe and mortal injuries among football players. Even so, defense lawyers filed a blunt disclaimer in wrongful death litigation two years ago: “The NCAA denies that it has a legal duty to protect student-athletes.” This ongoing case arose from head-on “Oklahoma” tackling drills at Frostburg State University in Maryland, during which co-captain Derek Sheely persevered through three days of wooziness and bleeding ear canals before he collapsed to die of brain trauma. Sheely’s parents appealed for an NCAA investigation into possible negligence or worse, but the NCAA closed ranks with Frostburg State. The NCAA’s president Mark Emmert did apologize to U.S. senators in 2014 for “a terrible choice of words created by legal counsel to make a legal argument,” and he emphasized the NCAA’s “clear, moral obligation to do everything we can to support and protect student-athletes.” Yet lawyers continue to resist discovery motions for NCAA communications with Frostburg State about Derek Sheely, arguing that disclosure “may be harmful to the NCAA’s legitimate business interests.”

These business interests remain foreign to the association’s public stance as a tax-exempt nonprofit service for college athletes, chartered to enhance their education. Less-than-lofty reminders of this conflict, such as semi-literate players, drive the NCAA to acquire—and major sports schools to offload—more authority over admissions and other academic standards, even though this function has pushed athletic regulators into the faculty domain. The NCAA juggles conflicting roles in the wake of egregious revelations at the University of North Carolina, which has admitted that some 3,100 students enrolled in phony “paper classes” and 560 forged grades aimed to keep UNC athletes eligible between 1993 and 2011. While reserving judgment and punishment of UNC in the four-year-old scandal, the NCAA is simultaneously a co-defendant with UNCin a multi-million-dollar class action filed by former UNC players who allege educational fraud. NCAA lawyers contend for a notion of academic guardianship short of responsibility, submitting in U.S. District Court “that the NCAA did not assume a duty to ensure the quality of the education student-athletes received at member institutions.”

Sports schools debate vague educational improvements. The PAC-12 is circulating a resolution “to establish a contiguous eight-hour period between 9 p.m. and 6 a.m. where athletic activities cannot be required,” which, if passed by the Autonomy Session at next year’s NCAA Convention, would prescribe a sleep break in the grueling sports regimen. One committee proposes to consolidate the many rules about academic misconduct at “one location in the Division I manual.” Another reform would elevate boilerplate language asserting that sports are “a vital component of the educational program and athletes shall be an integral part of the student body.” Beneath this rhetoric, sports schools have rushed to build lavish academic facilities reserved for athletes, such as Texas A&M’s $27 million Nye Center, UNC’s $30 million Loudermilk Center, and Oregon’s $41.7 million Jaqua Center, where tutors accountable to the athletic department supervise a growing portion of the curriculum. As demonstrated by UNC’s track record, this separated sports academy can subject college players to a tragic parody of education, worse than a Division I football team coached by biology professors.

“I think we recognized that all of my football players are at-risk,” Notre Dame coach Brian Kelly admitted of their academic well-being, “all of them—really.” He cited the demands of travel and nonstop training—“playing on the road, playing night games, getting home at 4 o’clock in the morning.” Still, somehow, only one idea provokes a battle cry to defend academic integrity. A right for athletes to seek fair monetary compensation would risk “Armageddon,” as Notre Dame president Jenkins put it.

“That’s when we leave,” he told New York Times reporter Dan Barry. “We will not tolerate that.” He vowed instead to collapse the entire Notre Dame sports machine into sandlot club teams. Shrewd observers have suspected a brazen strategic bluff, but Father Jenkins marshalled ethical and religious defenses grounded in his training. “I don’t think there’s a compulsion,” he said, “or some demand of justice.” He dissected a published charge that NCAA schools violate basic rights of their athletes (disclosure: specifically mine in The Atlantic), and found it “a little overheated.”

“So the thesis is, we exploit these young people for financial gain,” Jenkins began. “Let’s just think about that.” He said Notre Dame takes money from its high-revenue football and basketball teams “to help soccer players play soccer, help fencers fence, help swimmers swim.” This benevolent practice fits the “essential character” of education. A diversion of funds does take place, he concluded, “but that doesn’t seem to be exploitation.”

Aquinas and other theologians would look deeper. Only a tiny piece of captured sports revenue goes to the less marketable athletes. The bulk of it raises a golden pyramid in the sports establishment for head coaches, assistant coaches, broadcasters, strength coaches, advertisers, recruiters, builders, administrators, tutors, and so on. A secondary subsidy gives the facilities and non-student workers in money-losing sports a respectable share of the university brand, suchthat Florida paid its volleyball coach nearly $365,000 in 2009. In context, a noble motive to help swimmers and fencers must be weighed against the underlying conduct toward revenue-producing athletes. Schools pursue an aggressive commercial business outside the classroom by stripping the core talent of basic rights that other citizens take for granted. Indeed, NCAA rules forbid college players to seek any material reward, however slight, for athletic value, condemning their enterprise as uniquely unethical.

NCAA officials maintain that economic constraints on college athletes are vital for their own well-being and academic success. Emmert’s 2014 testimony to U.S. senators included an argument to this effect:

The most important thing for young people in college is to focus on education and earn their degrees. Attempts to label student-athletes as employees rather than students due to their participation in a voluntary athletic activity that establishes no expectation of compensation when they enroll can only blur and, in fact, undermine the focus on education. These attempts are ultimately not in the best interest of the student-athlete or the college environment.

Prominent economists, on the other hand, argue that big-time college sports are a textbook illustration of collusion to rig the labor market against the interest of those athletes. Such arguments put academic leaders and NCAA officials on notice that they may yet have to answer for unjust behavior. Gifts to needy athletes become far less righteous when extracted from others by fiat. If a charitable donation were atonement for ill-gotten gains, every thief would enjoy a handy alibi, and FIFA’s soccer executives would not be facing indictment for misappropriated funds.

Yet many outsiders of good will bridle at the prospect of a right to earn money for college athletes. Some fear selfishly that pay would threaten the collegiate sports they enjoy. Others cling to Socratic nostalgia, sensing that paid players would exacerbate sports greed that never should have taken hold at universities in the first place. College leaders promote both these apprehensions by classifying the college player a “student-athlete” of compound nature, fused together for a highly specialized purpose. Accordingly, the NCAA insists that no one can be eligible for pay and remain “first” or “primarily” a student, nor can any true student be an employee. This mantra defies reality along with common sense. When James Franco enrolled at UCLA while working on the set of Spider-Man 3, no one called him a “student-actor” to confiscate his income so that he could focus on schoolwork.

Franco is unusual as a public figure, but multiple roles abound on every campus. Of roughly 20 million undergraduates in the United States, 4 million have full-time jobs on the side, and 10 million more work part-time in every conceivable occupation. All these students and their teachers are charged to uphold academic integrity in class regardless of the separate responsibilities they manage elsewhere. Outside employment is neither rare nor taboo, which leaves the NCAA’s “student-athlete” regimen an outlier from any norm. Its hybrid pretense harms athletes on both fronts, reducing them to jock status in academic life and pupil-serfdom in commercialized sports.

Behind the calls for reform is moral clarity. It starts with the recognition that the NCAA’s economic restrictions on college athletes are bogus, without justification in law or principle. This is the thrust of an ongoing lawsuit filed by antitrust lawyer Jeffrey Kessler. If he wins, most colleges would scarcely notice, because they host humble but spirited games without scholarships or television contracts. The major sports schools will face massively difficult choices, however, in proportion to the cumulative distortion of their sports business. At least for a while, it will hurt for them to prioritize fairness over convenience and temptation.

Several forces could combine to create needed change. Ironically, the NCAA could come apart in ugly fights over skewed largesse. College players themselves, following the breakthrough example at Missouri, might devise symbolic protests. The courts, or Congress, eventually could confront the NCAA’s teetering hegemony. And colleges could set aside their self-interested bromides to launch a free-ranging inquiry on the relationship between education and the sports phenomenon on campus. No one has proved how or whether those two worlds can be made compatible, but intellectual honesty could light a better path.

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National Archives Foundation Honors Taylor Branch with Records of Achievement Award

October 29, 2015

The National Archives Foundation honored American author and Pulitzer Prize winner Taylor Branch with its 2015 Records of Achievement Award at a black-tie gala at the National Archives last night. The honor recognizes Branch’s lifelong work to chronicle the life of Dr. Martin Luther King Jr. and the history of the Civil Rights movement in his landmark series America in the King Years.

The Records of Achievement Award is an annual tribute given to an individual whose work has cultivated a broader national awareness of the history and identity of the United States through the use of original records, including those preserved by the National Archives.

National Archives Foundation Executive Director Patrick M. Madden, former Attorney General Eric Holder, Records of Achievement Award honoree Taylor Branch, Foundation Chair A’Lelia Bundles, and Archivist of the United States David S. Ferriero with the 2015 Records of Achievement Award, featuring facsimilies of a redacted document from Mr. Branch’s Freedom of Information Act (FOIA) lawsuit against the FBI, as well as a facsimile of that same document, which has recently been declassified. Photo by Pepe Gomez for the National Archives Foundation.

Foundation Chair A’Lelia Bundles, Executive Director Patrick M. Madden, and former Attorney General Eric H. Holder joined Archivist of the United States David S. Ferriero in presenting the award.

“As our nation observes the 50th anniversary of the Voting Rights Act, it feels especially appropriate to salute Taylor Branch’s meticulous scholarship and his gift for bringing the details of that pivotal era to life,” said Foundation Chair Bundles.

“Branch’s Pulitzer Prize-winning narrative history of the United States during the Civil Rights era has shaped the public’s understanding of this transformative period of American history,” said Archivist of the United States Ferriero.

“The country’s living history is found within the walls of the National Archives. Last night’s event gave us the chance to showcase not just Taylor Branch’s legacy, but the breadth and depth of the stories in the National Archives,” said Foundation Executive Director Madden.

“From marriage equality, to law enforcement engagement with the communities they are sworn to protect and serve, to that most fundamental American right – the right to vote –the need to learn from the civil rights struggles of the past remains vital and urgent,” added Holder.

Mr. Branch’s efforts to preserve the legacy of one of the most influential periods in American history emphasizes the essential value that the National Archives, with facilities throughout the country, continues to provide in recording and protecting American history. National Archives holdings include original records of the Civil Rights movement including the landmark legislation outlawing discrimination based on race, color, religion, sex, or national origin: The Civil Rights Act of 1964.

“I am humbled to join the list of scholars and artists recognized by the National Archives Foundation,” said Taylor Branch. “Because our country is founded on an idea rather than a language or ethnicity, the U.S. National Archives can serve an inspirational purpose: to light the future by confronting the past. I salute your mission.”

Last night’s gala included a red carpet reception, an awards ceremony in the Archives’ William G. McGowan Theater, and a seated dinner in the Rotunda Galleries, celebrating the public-private partnership between the National Archives and the nonprofit National Archives Foundation. Soulful Revue – the all-male ensemble choir for which Branch serves as Director – made a surprise appearance, with a shocked Branch joining them in an impromptu performance.

Previous recipients of the Foundation’s award include: Steven Spielberg, Tom Brokaw, Ken Burns and David McCullough.

The Gala and Records of Achievement Award Ceremony is made possible with the leadership support of AT&T. Major support provided by Governor Jim Blanchard and Janet Blanchard, and the Maris S. Cuneo Foundation. Additional event support from Marvin F. Weissberg.

So immigration blessed us with Cherry in spite of the old immigration policy, long before I knew anything about the 50-year-old Reform Act we celebrate today. Many Americans still know very little about that historic law. You may be familiar with the origins from your application process, but I have been asked to review for you its central place in our Constitutional history.

The Immigration and Nationality Act of 1965 grew directly from momentum built by the modern civil rights movement, in the era of Dr. Martin Luther King. Having been enthralled to study and write about that history for nearly 40 years, I can assure you the 1965 law was difficult to pass. Some called it a miracle. Anti-civil-rights forces filibustered to preserve restrictions that had choked down immigration from all but a few countries in northern Europe, excluding most of the world. Senator Edward Kennedy said political success was unimaginable until 1964, when civil rights cracked open the gate. Even so, President Lyndon Johnson had to cajol, wheedle, and cuss. “Where’s my blankety-blank immigration bill?” he yelled day and night. As full-fledged citizens, you may be entitled now to hear his actual profane words, but not from me here in this dignified space.

President Johnson’s allies pushed immigration reform through Congress only a month after the Voting Rights Act of 1965, breaking Senate filibusters against the two bills by almost identical landslide votes. Then on October 3rd, fifty years ago Saturday, President Johnson stood beneath the Statue of Liberty in New York to correct what he called “a cruel and enduring wrong in the conduct of the American Nation…the harsh injustice of the national origins quota system.” With his signature, the 1965 Act abolished that pretension to an ethnic empire. “We can now believe,” he declared, “that it will never again shadow the gate to the American Nation with the twin barriers of prejudice and privilege.”

These are ringing words of freedom. They affirm that the United States is founded not on any language or ethnic identity, but on the pioneer ideal of equal citizenship embodied in the Constitution’s first three words: “We the People.” A few historians like me have proclaimed the 1965 Act a third pillar of democratic fulfillment from the civil rights era, along with Voting Rights and the Civil Rights Act of 1964. You are a testament to that ideal. No other nation holds naturalization ceremonies quite like this one.

And yet, the law that brings you here lacks public appreciation for its impact and promise. There is no Martin Luther King of immigration reform—nor any landmark anniversary on par with Selma and the March on Washington. Our immigration stance, which embraces applicants worldwide, earns nothing like the stature it deserves here in the United States. Critics still ignore or belittle the 1965 law, branding it merely a Cold War measure to admit more refugees from Communism.

There remains an underside to American performance for immigrants, legal and otherwise. Even on this happy day—perhaps especially on this happy day—we should pause briefly to fortify hope by acknowledging reality. I would be shocked if most of you do not suffer moments of isolation, doubt, and rejection, not only from Americans by birth but from members of other immigrant groups. The United States has not reached its perfect Union. We must seek to understand flaws from the past in order to overcome them for the future.

The very first naturalization law, which established in 1790 the oath and other features of today’s ceremony, required an aspiring immigrant to be “a free white person.” For more than a century, as our upstart nation grew slowly into a world power, nativists labored to place the “white person” standard within some scientific hierarchy of races, always with white people on top. This ruling conceit culminated in signal embarrassments for three consecutive years.

In 1922, the Supreme Court unanimously refused the citizenship application of one Takao Ozawa, a Japanese immigrant of 28 years’ legal residency, on the ground that his light skin did not meet an objective test of membership in “the Caucasian race.” Promptly in 1923, however, the Court confronted an applicant whose experts testified that Punjabi descent made him Caucasian along with certain Polynesians, Hamites, and others. In United States v. Bhagat Singh Thind [261 U.S. 204 (1923)], our Supreme Court abruptly reversed course, again unanimously, once science failed to support popular prejudice. Spurning what they called the previous year’s “speculations of the ethnologist,” the Justices denied naturalization to Thind by formulating a new legal standard of whiteness to be based on public opinion, “interpreted in accordance with the understanding of the common man.”

In 1924, Congress debated the Court’s floundering definitions. Theories clashed over basic racial categories, let alone details, with eminent social scientists counting variously three, five, eleven, sixteen, on up to sixty-three distinct races. Worse, the whole “Caucasian” category turned out to rest then and now on one antique shipped in 1795 to Johann von Blumenbach, a founder of sociology, who said the skull arrived from the Caucasus resembled many German specimens in his collection. Congress, attempting to circumvent an exposed charade, substituted nationality for the vagaries of race in laws governing immigration and naturalization. The National Origins Act of 1924 favored allegedly “sturdy stocks” of northern Europe. It reserved seventy percent of annual immigration quotas to England, Germany, and Ireland. Most observers at the time endorsed a notion of Nordic or Teutonic citizenship in the new law, which the Chicago Tribune called “a Declaration of Independence, not less significant and epoch-making for America and the world than the Declaration of 1776.”

This was the national origins quota system we abolished half a century ago with President Johnson’s Immigration and Nationality Act, whose anniversary we celebrate today. Over the past fifty years, our openness to applicants from all nations has transformed the face of the United States literally and figuratively. Today you join 48 million naturalized legal immigrants since then, of whom some 34 million survive. They supply not only half our population growth but also a comparable portion of new skilled employment. More than we realize, Americans are at home with our national creed of multi-national, multi-ethnic citizenship. All of us must help stragglers reach out, too, perceiving that no foreign origin is too foreign to yield a fellow citizen. The stakes are far greater than courtesy or manners. At the Statue of Liberty, President Johnson proclaimed a vital imperative for our shrinking globe. “We, because of who we are,” he said, “feel safer and stronger in a world as varied as the people who make it up.”

From this day forward, I urge you to proceed as though you own an equal share of our nation’s faults as well as her glories, because you do. Our votes count the same. We are pledged to make real that equal responsibility from the founders, and your experience is vital. Be pushy if need be. Help us lay claim to the converging path of justice that you have marched in good faith, drawing strength from inclusion—rising from discrimination toward full respect and opportunity alongside still-disfavored groups such as women, the disabled, persons of color, and gay and lesbian communities, among others.

Help us restore the determined public trust at the heart of our American experiment. Summon us to dispel cynicism and gridlock in public discourse, inspired anew by the example of our first African American president to tackle the most difficult national problems. Remind us all—not just on occasions like this—of the cumulative audacity and optimism packed into the breathtaking Preamble sentence you now inherit: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

American citizenship is a tough job. Here’s hoping no one told you it’s easy. Welcome again. I am honored to join you. God bless.

After today’s ceremony with newly naturalized US citizen Gina Haller (center, with official certificate).

A new citizen comes forward for her US citizenship certificate during today’s ceremony.

Dear Mr. Branch,

 

I am…a junior at Denison University, currently taking a Communication course on Sports in the Media, called “Of Virtue and Horror”. We have discussed and read many controversial issues within sports, both at the professional and college level, as well as gender, race and class issues that arise. These issues are important to me as a Division 3 athlete at Denison.

 

I had a few questions related to “The Shame of College Sports” article, if you have a chance to respond to any of them I would appreciate it. I was fascinated, even shocked, by the corruption within the NCAA and its power over athletes and Universities.

 

I am interested in the origin of the term “student-athlete”, which I know you discussed how it was constructed in order for the NCAA to avoid legal issues - yet do you believe that the term holds any integrity? Is it possible for one to be a student-athlete, particularly in Division 1 athletics?

 

Throughout the course, we have discussed the possibility of separating academic institutions from sports; would you see that as a potential solution to reduce corruption within Universities?

 

What repercussions would you predict to occur if the NCAA were to pay Division 1 athletes? Would there need to be certain criteria based on the skill level or success of certain athletes, on a case by case basis?

 

If you have the opportunity to comment briefly on any one of these questions, I would greatly appreciate it!

 

Thank you for your time,
[Signed]

REPLY

Dear [Signed],

 

Thanks for your interest. Here are some quick comments in response to your three questions.

 

[1] The term “student-athlete” serves no constructive purpose to my mind. I refuse to use it. By repetition, this mantra befuddles people into thinking that college athletes are unique hybrid creatures under NCAA jurisdiction. In fact, athletes are a small fraction of American students with active parallel careers. Some 14 million of the 20 million U.S. undergraduates have full- or part-time jobs while in school, but no one would think to call them “student-cashiers,” “student-teachers,” “student-investors,” or any of the myriad combinations. They are rightly students in the classroom, subject to academic rules, and free citizens in their outside pursuits. The same should hold true for athletes.

 

[2] Separating academics from athletics might make sense for some individual schools, especially those with highly commercialized sports, but the most needed change is clarity about the essential differences between sports and education. Without that, it is difficult or impossible to manage conflict between them with integrity. Currently, through the NCAA, colleges including yours impose on all college athletes a collusive work regimen that is the equivalent of a private tax on students who deliver pizza or give music lessons.

 

[3] No school can or should be required to pay athletes. If, however, the NCAA’s blanket restriction of college athletes is recognized as unfair, bogus, and potentially criminal under the anti-trust laws, colleges must make decisions on a new foundation. For the vast majority of U.S. colleges, bargaining rights for athletes would make little or no difference because there is not enough revenue to create a market for athletic talent. At the big-time sports schools, by contrast, fair markets in a multi-billion-dollar industry would tend to shift compensation from coaches and others to the players. In that case, some schools may choose to abolish revenue sports as incompatible with their academic mission. My guess is that most of the sports-intensive schools will develop separate conferences over time to compete at different financial levels.

 

Justice has been delayed because outsiders dream up every pretext not to address the basic rights of college athletes. They prefer to adjust those rights to convenience rather than the other way around. This is the true shame of college sports, which thankfully is besieged by reform on several fronts.

 

I hope these comments are helpful. The underlying issue is fairly simple, but vested interests and false education confuse things even at universities dedicated to rigorous thought. Please feel free to discuss your concerns further with me by phone.

 

Yours,
Taylor Branch

Join the enthusiastic debate following this article on The Atlantic’s website

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