An Open Letter to College Sports Fans
It’s time to admit that we were wrong.
Dear College Sports Fans,
I get it. I know how you feel because I’m a college sports fan too. It’s weird, it’s unprecedented, it’s scary, but most of all, it’s embarrassing.
It’s embarrassing because, after years of truly believing the NCAA’s expansive and finely-tuned “student-athlete” propaganda campaign, we’re finally realizing that we’ve all been duped. We blinded ourselves with our school pride, our inherently selfish perspective, our own love for sports in their purest form, and our enjoyment from cheering on these exceptionally talented athletes while pretending that they are living normal student lives, “just like the rest of us.”
Collegiate athletes did not just become employees last week. They became employees decades ago, when Division 1 universities first began offering athletic scholarships under the strict condition that the athletes continue to participate on the school teams throughout their time at the school. We just didn’t recognize them as professionals because we stubbornly refused to challenge a lie so deeply ingrained in our sports culture. And probably also because their compensation is so much lower than the superstars at the highest levels of American sport. A scholarship worth thousands may seem like a lot to you and me, but it pales in comparison to the millions made by those in the NFL, NBA, and other officially recognized pro leagues. Of course, these lower-level athletes do not deserve as much as that, but they probably deserve more than they are getting. That’s a debate for another day.
As Peter Sung Ohr, the Chicago regional director of the National Labor Relations Board, pointed out in his historic 24-page ruling, and as many others have pointed out before and since, college athletes perfectly fit into the common law definition of an employee. If you are still unconvinced, please stick with me here as I briefly explain before moving on to the important stuff. If you already know all this, feel free to skip ahead.
There are only four components to the common law definition of an employee:
1. An employee provides the employer with services. Regardless of whether the athletes bring in revenue for their schools, they are indisputably providing a service just by taking the field, if the university decides that they want sports teams for any reason. That’s what a service means. Add in 50-60 hours a week of practice during the summer — plus lifting weights and watching game film in certain sports — and suddenly the services these students provide seem quite strenuous. The difficult nature of the job is actually completely irrelevant. Perhaps it makes the athletes’ case more compelling, but it does not change the basic facts. It is also completely irrelevant that, like most other professional athletes and in fact many participants in the general American workforce, many college athletes genuinely love their job. They can love doing it, they can hate doing it, it makes no difference to the fact that they are doing it. All they need to do is play the sport on behalf of the school and they have fulfilled the definition of providing a service.
2. An employee is under contract, as all college athletes are once they sign agreements with their programs assuring that they will lose their scholarship if they voluntarily decide to stop playing the sport at any time — or if they break any of the other arbitrary team rules.
3. An employee agrees to give the employer some level of control, as all college athletes do, often to a stunning degree. Just by showing up to mandatory games and practices, they are already allowing the coaches to control them. But furthermore, in some instances they’ll also concede control by following social media guidelines, wearing certain clothes, limiting their comments to the press, living in certain dorms, or even changing majors. All students give up control to their professors by showing up to class and doing their homework, but the difference is that they are not paid to do so. On the other hand, the professor (an employee) cedes control to his or her university (an employer), by teaching the class — and they are paid to do so.
4. So finally, an employee receives payment from the employer. Not necessarily a paycheck. Not necessarily a salary. Just a payment. The scholarship that an athlete receives is not a “free education,” it is compensation with a value of tens of thousands of dollars that they earn solely by playing sports and complying with the contract they signed once they joined the team. If these schools wanted, they could pay their athletes with anything: Movie tickets, phones, clothes, money, Pokemon cards, or perhaps tuition, room and board. All of these are philosophically viable forms of payment. In economic terms, this education is by no means free, it is a payment for fulfilling the services outlined in their contract.
Simple.
“When someone is that afraid of being contradicted, they are no longer concerned with the truth, only with protecting their priceless investment in what they have said.”
So those who still somehow believe that these individuals are not indeed simultaneously students and employees of the universities must fall into one of two camps: Either they do not know the common law definition of an employee (in which case they should frankly educate themselves before participating in the discussion and forming their opinions), or they are deceiving themselves so that they can clasp onto a false ideal that has worked out so well for them for so long.
I have to believe that the NCAA falls into the latter category. Surely these executives, who are paid hundreds of thousands to millions of dollars a year, have at least the most basic understanding of the laws that should (theoretically) be governing their own industry.
These oligarchs have spun lie after lie, red herring after red herring, in order to get you to believe (or perhaps to get themselves to believe) that somehow college athletes should be treated differently than every single other member of civil society in America. Don’t fall into the trap.
Yes, college athletics is probably going to look somewhat different now in certain respects. That’s kind of the whole point of this movement. Thank you Captain Obvious for pointing out that “change” and “different” go hand in hand. It’s very difficult right now to know exactly how different because the powers that be refuse to have an honest conversation about reform, instead relying on thinly-veiled threats to try to convince the American public to take their side.
So far it’s working. Recent polls show that about 75 percent of Americans oppose the idea of college athletes unionizing. But that’s about as valuable as a poll showing that a majority of slaveholders opposed abolition. And, fortunately, American citizens get the opportunity to elect representative legislators, but they do not get to unilaterally change the law by themselves.
Before you read any further, I need you to accept a five-word truth that is difficult, and strange, and not what we are often taught to believe in American society today:
This is not about you.
It’s not about the fans, the coaches, the executives, the athletic directors, the professors, and it’s sure as hell not about Sally Jenkins (only click on this link if you are a masochist). It’s about the athletes that have been unwilling participants in a price-fixed cartel for decades with no other option to avoid their exploitation than to turn to the prohibitively expensive legal system, as Kain Colter and the College Athletes Players Association so courageously decided to do (along with Ed O’Bannon and a number of others).
I’m sorry that the status quo — a state of affairs that has been so convenient for us and that we have held so dear — is all about to change. But the faster you accept that we were wrong, the easier it will be to get over it. Trust me.
If you really think that unionization will have an ultimately negative impact on the lives of college athletes, you should not be trying to convince the NLRB. You should not be trying to convince the Supreme Court, Congress or even the American public. You should be trying to convince the college athletes.
After years of being told what to do and think and say, these individuals will finally have some actual control over their own future. They are the employees who will now have the option to vote to form a union — if and when the universities stop pouring millions of dollars into legal fees simply to delay the inevitable.
This preliminary debate is not even about what’s ultimately “best” for the athletes, it’s simply about what is right. Ohr’s job as the Chicago director of the NLRB is not to decide what is best for anyone at all, it is to interpret the law, which he did with remarkable clarity.
If Congress really does feel strongly about the dangers of unionization, they have the option to make college athletes an exception to the rule through legislation. Personally, I think that such a measure would be an extremely dangerous path to take. If legislators make one exception to the legal definition of employment, what is to stop them from continuously expanding those exemptions to other forms of labor whenever they deem it convenient? But, again, that’s a debate for another day.
To be honest, I have no idea whether the athletes should unionize or not. I do not envy them as they wrestle with that decision because it is admittedly a difficult one with nuanced consequences. I have no idea whether such a process would be the best possible solution for everyone involved. But I do know that the athletes have a right to unionize if they so choose, just like all other employees, unless the law specifically forbids such an action for all employees (as 24 “right to work” states do.) And given the extremely limited options they have for leverage, the odds are that unionization will seem like a pretty attractive choice.
The idea of students being employed by their university while also studying is hardly new. Work-study jobs have existed for decades at some institutions as a way for students to earn money from the university in order to help pay tuition — working at help desks, the school bookstore, etc. Perhaps work-study is a model that college athletics can move towards, but we’ll only find out if we have the conversation.
This story isn’t just about greed, but rather it’s more about simple interests. For decades, the only interests that have been involved in this one-way discussion have been those of the NCAA and their member schools. That’s not how a democratic society works. The other side has gone wholly unrepresented.
It is not surprising that the NCAA will do absolutely anything in its power to protect its interests — raking in billions of dollars off the backs of college athletes while incurring minimal costs. That’s what an economic self-interested rational actor is supposed to do. Unfortunately they’ve gone so far as to rig the system such that their voice is the only one at the table. That’s cheating. We have laws against that kind of stuff; we just haven’t been applying them.
Below are the three most common opposing responses so far to the ruling that college athletes are indeed employees:
1. “They already get a free education (no they don’t), what more could they want?”
2. “It’s not in the athletes’ best interests to be employees.”
3. “But… but… It just doesn’t feel right.”
Needless to say, none of these holds any relevance whatsoever to the actual facts of the case and the fact that they are, by definition, employees.
The NCAA can keep telling us that they are looking out for the athletes’ best interests until we are all deaf, but that does not make it true, and it actually does not even matter. I would hope that universities already care a little bit about the interests of all their employees — professors, deans, facility workers, receptionists, and janitors. But if they did not, those employees would have the right to unionize in order to form some leverage to defend themselves and their own interests.
If we decide that we really want actual amateurism, then the players should voluntarily play for free — meaning no more athletic scholarships. That’s what amateurism means everywhere else in the world. Walk-ons and Division III athletes are the only real amateurs in American college sports. If you receive a scholarship, even if that scholarship is worth one dollar, you are an employee.
Alternatively, we can accept that these athletes are what they are, professional employees, and start treating them with the same rights as everyone else, including the ability to negotiate their compensation if they deem that a scholarship is not of accurate value to their proper market worth. (It should be noted that, so far, the athletes have demanded no such thing. They just want better protection and the option to market themselves.)
These negotiations will be difficult. Thank you to Sally Jenkins for pointing that out in her stunningly shortsighted and misinformed column in the Washington Post this past weekend (again, click at your own peril. It’s really brutal.).
As John Feinstein so eloquently wrote in his firm rebuke in the same newspaper a couple days later, “All change frightens people. Those opposed to it resort to scare tactics and what-ifs. Of course, none of this is simple. Nor is it insurmountable once the decision-makers care enough to figure it out.”
We should all be thanking a divine power that Jenkins had no role in American development in the 19th and 20th centuries, or progress would have been completely impossible. One can only imagine her likely columns throughout U.S. History:
1960s: “Guys, word on the street is that there’s no gravity in space, so what if the astronauts float away? Space exploration is hard, and we have everything we need here on Earth! Let’s just forget about it.”
1850s: “If we abolish slavery, who’s going to do all that free labor? This hurts my brain and I don’t like coming up with solutions because that requires time and thought, so let’s just keep things the way they are. It’s working out pretty well for me!”
1920: “It kind of sucks that us women don’t get to vote, but if you let us vote then what’s next? Are you going to let children vote? African-Americans? Immigrants? Rather than address these questions, the status quo seems just fine. My husband bought me some pretty cool gear this weekend, and I have plenty of other rights, so I’m ok with the fact that this particular one is getting flagrantly suppressed.”
I know that all you fans, like me, were not intentionally suppressing the rights of these athletes because of some sort of malevolent streak. We were all wrong, but we are not evil. Perhaps even the NCAA genuinely did not realize what they have been doing all along. And indeed, many students that might otherwise have been unable to afford a college education have been helped by this system through the decades. But that does not make it right.
Of course, in the grand scheme of things, none of this matters. On the list of global priorities, this issue could hardly be any lower. Frankly, nobody outside America gives a flying shit about what happens to our college athletes, nor do they even understand why we take it so seriously to begin with. And a lot of the journalists covering this story, including myself, have been guilty of using plenty of hyperbole and sweeping generalizations to make our point. But just because this topic is not particularly significant does not mean that we should not try our best to fix a blatant flaw in the system.
It’s time to stop pretending. It’s time to accept the indisputable evidence. It’s time to start creating solutions so that we can maintain some of the aspects we love about college sports, while reforming those that are clearly wrong. It’s time to move on. So don’t get left behind.
