Saturday, April 12, 2014

Extended Commentary: Kain Colter's Union, Part II


Why are college athletes, specifically quarterback Kain Colter and the Northwestern Wildcats football team, forming a labor union?  Today’s commentary will attempt to answer that question. 

On March 26, 2014, the National Labor Relations Board granted Northwestern University football players the right to form a labor union, known as the College Athletes Players Association or C.A.P.A.  In its 24-page report, the N.L.R.B. concluded that the athletes are employees of Northwestern University because they are receiving compensation in the form of grant-in-aid athletic scholarships.  Thus, Kain Colter and the rest of the Northwestern football team have the right to bargain collectively for their services under federal law.  Northwestern University is currently appealing the decision.  


But regardless of whether or not Northwestern successfully appeals the N.L.R.B.’s ruling, one thing is clear:  Colter and his colleagues have brought national attention to the exploitative business of college sports, an industry that annually generates billions in revenues for the N.C.A.A. and its largest conferences.  One article from Bloomberg Businessweek estimates that the college athletics business is currently worth as much as $16 billion.  As for the players themselves, they receive little compensation beyond an athletic scholarship in exchange for devoting as much as 40-50 hours per week to their chosen sport.  Unfortunately, according to C.A.P.A.’s website, the N.C.A.A. caps “full” scholarships “below the cost of attendance by $3,000-$5,000 per player per year.”This form of what can be interpreted as wage suppression occurs at a time when the N.C.A.A. made nearly $913 million in fiscal year 2013.^^  Most of that money comes from the current 14-year television contract between the N.C.A.A. and CBS-Turner to broadcast the Division I Men’s Basketball Tournament for $10.8 billion.  In addition, the new College Football Playoff, which replaces the BCS, has a ten-year television deal with ESPN worth $7.3 billion.  
 
It is true that money is a major issue throughout college sports.  Some would argue that it is the central issue behind Kain Colter’s decision to form the C.A.P.A., which he did in back in January with assistance from both Ramogi Huma, president of the National College Players Association, and Leo Gerard, president of United Steelworkers.  In a New York Times op-ed dated April 2, Patrick T. Harker, president of the University of Delaware and a member of the N.C.A.A.’s board of directors, argued that “player unions would be a disaster for . . . student athletes” because the “prospect of college football players bargaining to exchange scholarships for salaries” would “lessen the priority on learning.”^^^  Currently, one could argue that most Americans may share that view.  According to a recent HBO Real Sports/Marist College poll, 75% of those surveyed believed college athletes should not unionize.  A second poll from the same organization also revealed that 67% of Americans were against the idea of paying college athletes.*   

Thus, it appears that the C.A.P.A. will have to sway public opinion in its efforts to unionize college athletics.  But Colter and his allies seem to understand that the best way to gain public support is to avoid the issue of paying athletes entirely.  Rather, he and his colleague Ramogi Huma have framed their argument for unionization as one based on fairness and “giving athletes a seat at the table.”  As Huma put it in an article from ESPN.com:  “Athletes deserve an equal voice when it comes to their physical, academic, and financial protections.”**  In addressing these issues, Colter, Huma, and Gerard outlined the following demands back in January:


  1.  Provide financial coverage for sports-related medical expenses (including after graduation)
  2.  Establish educational trust fund to help former players graduate
  3.  Make all scholarships guaranteed four-year scholarships
  4.  Make stipends cover full cost of attendance, regardless of school
  5.  More representation for major N.C.A.A. decisions
  6.  Placing independent concussion experts on the sidelines during games
  7.  "Due Process" before a coach could strip a player of his scholarship for a rules violation


Given how much control the N.C.A.A. and its constituent universities exercise over college sports, as well as lives of its players, it is highly unlikely that the changes Colter and his allies are seeking could be achieved on an individual basis.  Indeed, the N.L.R.B.’s report on Northwestern outlines many rules that college athletes have to follow when they are off the athletic field


     the Employer’s players (both scholarship players and walk-ons) are subject to certain  
     team and athletic department rules . . . Specifically, freshmen and sophomore year players  
     receiving scholarships are required to live in on-campus dormitories. Only upperclassmen
     players are permitted to live off campus and even then they are required to submit their lease  
     to Fitzgerald for his approval before they can enter into it. If players want to obtain outside  
     employment, they must likewise first obtain permission from the athletic department. This is  
     so that the Employer can monitor whether the player is receiving any sort of additional
     compensation or benefit because of their athletic ability or reputation.  Similarly, players are
     required to disclose to their coaches detailed information pertaining to the vehicle that they
     drive. The players must also abide by a social media policy, which restricts what they can  
     post on the internet, including Twitter, Facebook, and Instagram. In fact, the players are
     prohibited from denying a coach’s “friend” request and the former’s postings are monitored.     
     The Employer prohibits players from giving media interviews unless they are directed to 
     participate in interviews that are arranged by the Athletic Department. Players are prohibited
     from swearing in public, and if a player “embarrasses” the team, he can be suspended for
     one game. A second offense of this nature can result in a suspension up to one year.
     Players who transfer to another school to play football must sit out a year before they can  
     compete for the new school. Players are prohibited from profiting off their image or  
     reputation, including the selling of merchandise and autographs. Players are also required to
     sign a release permitting the Employer and the Big Ten Conference to utilize their name,  
     likeness and image for any purpose. The players are subject to strict drug and alcohol
     policies and must sign a release making themselves subject to drug testing by the Employer,
     Big Ten Conference, and NCAA. The players are subject to anti-hazing and anti-gambling
     policies as well.  (Source:  pp. 4-5, National Labor Relations Board, Case 13-RC121359).  

 
After one reads these rules, he or she can understand why Colter views the N.C.A.A. as being “like a dictatorship.”***  In a work environment where employees have no representation, they are at the mercy of their bosses.  While some employers are more benevolent than others, the companies and associations that historically put profits before persons are usually the first to control, exploit, and abuse their workers.  For instance, as New York Times opinion columnist Joe Nocera points out, “the phrase ‘student-athlete’ was . . . dreamed up in the 1950s by then-N.C.A.A. president Walter Byers, after it appeared that injured athletes in several states might be allowed to get workers compensation.”<  Sixty years later, a severely injured college athlete faces the possibility of having his or her scholarship revoked.<<  Poor academic performance and failing to follow N.C.A.A. rules can also have the same outcome.   

It is interesting to note that the N.L.R.B.’s recognition of the C.A.P.A. occurred the day after the 103rd anniversary of one of the deadliest industrial disasters in American history.  On March 25, 1911, 146 garment workers, mostly young immigrant women, died in the Triangle Shirtwaist Factory Fire in New York City.  The disaster endures as a tragic and horrifying symbol of worker exploitation and abuse because the loss of life could have been prevented.  First, the factory owners forced their laborers to endure hazardous, sweatshop conditions as they worked long hours for low pay.  Second, the owners locked the doors during the workday to prevent theft and to keep members of the International Ladies’ Garment Workers’ (I.L.G.W.) union away from the workers.  Because the doors were locked when the fire occurred, and since the factory occupied the upper floors of a ten-story building, the workers were trapped.  As a result, one of the only ways they could escape the burning building was by jumping out of the windows.  The workers who made that desperate choice fell to their deaths. 

Historians have cited the Triangle Shirtwaist Fire as a milestone in organized labor’s struggle to unionize sweatshop factories in the United States during the Gilded Age.  The subsequent public outrage to the disaster convinced many states to pass laws that improved workplace safety standards.  The I.L.G.W eventually grew into an organization encompassing 450,000 workers by 1969.  And two years after the fire, president William Howard Taft signed legislation creating the Department of Labor as a cabinet-level position.

The Federal Government ultimately recognized the right of workers to unionize in the National Labor Relations Act of 1935.  This Depression-era legislation was also responsible for creating the N.L.R.B., whose main duty is conducting elections that enable labor unions to bargain collectively with employers.  According to the N.L.R.B.’s report concerning the employment status of the Northwestern University football team, it has authorized an immediate election, by secret ballot, among “all football players receiving football grant-in-aid scholarship and not having exhausted their playing eligibility.”<<<  Though Northwestern University has appealed the N.L.R.B.’s ruling, the players’ union election will hopefully proceed without incident or intimidation. 
Indeed, the N.L.R.B.’s decision regarding the collective-bargaining rights of college athletes only affects private universities like Northwestern, Miami (FL), USC, and even Syracuse University.  College athletes that play for public universities will have to go through state-level labor boards if they demand collective bargaining rights.  Colter and his allies understand that any effort to fully unionize college sports will take years, perhaps decades, to occur since the N.C.A.A. and its universities are reluctant to change the current lucrative business model of college sports. If the C.A.P.A. undertakes this long-term commitment to unionize “student-athletes” (and every article I read on the subject indicates that it will), it will need the support of the American public.  Unfortunately, as the story of Triangle Shirtwaist Fire demonstrates, greater public support for progressive causes such as promoting workers’ rights is often a consequence of tragic events.
In the summer of 2011, a Frostburg State University football player, Derek Sheely, died after sustaining a traumatic brain injury from a helmet-to-helmet hit during team practice.  Sheely’s parents, two years after their son’s death, ultimately filed a wrongful death lawsuit against the N.C.A.A. and three Frostburg State coaches (the full story of Sheely’s death can be found here).  In response, the N.C.A.A. filed a thirty-page document to Montgomery County (MD) Circuit Court last December stating: “the N.C.A.A. denies that it has a legal duty to protect student-athletes.”Since then, two more college players, California-Berkeley’s Ted Agu and Navy’s Will McKamey, have died after they had both collapsed during spring practice.  While it is not yet known what caused Agu’s death, initial reports on McKamey’s demise mentioned that he had "bleeding on the brain” as well as “a history of head injuries.”>> 
To its credit, the mainstream media has been paying more attention to the dangers of head trauma and concussions in contact sports like football, hockey, basketball, and soccer.  But this increased coverage began after N.F.L. players Junior Seau, Ray Easterling, Paul Oliver, Jovan Belcher, Dave Duerson, and Mike Borich committed suicide over the last few years.>>>  Post-mortem brain examinations of these players, excluding Jovan Belcher, though his body was exhumed for such a procedure back in December, all confirmed that they had Chronic Traumatic Encephalopathy or C.T.E.  C.T.E. is an incurable degenerative disease caused by repeated blows to the head, and its effects include depression, irrationality, memory loss, dementia, and mood swings.  
It is not known how many football players are currently afflicted with this disease since a definitive diagnosis of C.T.E. can only be made after death.  Unfortunately, the disease can affect anyone who has played football at both the professional and amateur levels.  In fact, CNN.com reported in January 2012 that C.T.E. has been found in players as young as seventeen.  That year, CNN confirmed that a high school football player, Nathan Stiles, who died a few hours after he collapsed on the sidelines during a game, is currently the youngest player to be diagnosed with C.T.E.Based on this development, along with a recent New York Times article about Hall of Fame player Rayfield Wright mentioning “that N.F.L. players encounter dementia, Alzheimer’s and other neurological diseases with greater frequency than the general population,” one can argue that the United States has a nascent public health crisis.++ 
What is known is that the N.C.A.A. and the N.F.L. are fighting class-action lawsuits in which the plaintiffs allege that both organizations failed to inform their athletes about the adverse health effects of concussions and repeated head impacts.+++  In the N.F.L.’s case, a federal judge recently rejected a $765 million settlement on the grounds that it was too small “to pay for medical tests and treatment for the thousands of players who face - or could face - heath problems related to their N.F.L. careers.”--  In the meantime, players like Rayfield Wright, who is currently suffering from dementia and is one of the 4,500 plaintiffs involved in the current N.F.L. lawsuit, have access to a health plan, which is jointly operated by the league and the N.F.L. Players Association, to help cover some of their medical expenses.   As for college players enduring the effects of constant head trauma and other injuries, no such plan is available to them.~  Hence, it seems like college athletes have two options when it comes to protecting their health and safety.  They can either await the outcome of a class-action lawsuit, or join organizations like the C.A.P.A. to bargain collectively for the economic and social protections that they deserve as employees of the N.C.A.A. and its universities. 
So, why are Kain Colter and the Northwestern Wildcats football team forming a labor union?  Because they believe collective action is the most effective way to solve the various socio-economic problems that have arisen as a consequence of the unequal relationship between the N.C.A.A. and its athletes.  The problems I discussed in this commentary (i.e., insufficient funding for scholarships, social controls placed on the lives of athletes, and the health and safety of players) are present throughout college athletics and necessitate cooperative methods to solve them.  Indeed, Kain Colter and his associates did achieve a significant victory in what will be a long struggle to unionize college sports.  However, Northwestern University is appealing the N.L.R.B.’s ruling, and the Wildcats football team will not hold their vote on union representation until April 25th.  Until that day, the next two weeks will hopefully provide more opportunities for debate on an issue that may reshape the landscape of college sports.


Sources:



^^^http://www.nytimes.com/2014/04/02/opinion/student-athletes-shouldnt-unionize.html?_r=0

*http://www.cbssports.com/collegefootball/eye-on-college-football/24502907/75-percent-of-americans-against-college-players-unionizing

** http://espn.go.com/espn/otl/story/_/id/10363430/outside-lines-northwestern-wildcats-football-players-trying-join-labor-union

***ibid

http://www.nytimes.com/2014/02/01/opinion/nocera-unionized-college-athletes.html

<< http://www.theatlantic.com/entertainment/archive/2013/05/i-trusted-em-when-ncaa-schools-abandon-their-injured-athletes/275407/

<<< http://www.nlrb.gov/news-outreach/news-story/nlrb-director-region-13-issues-decision-northwestern-university-athletes

>http://www.cbssports.com/general/eye-on-sports/24380786/ncaa-denies-legal-duty-to-protect-student-athletes-court-filing-says

>>http://www.washingtonpost.com/blogs/early-lead/wp/2014/04/01/after-will-mckameys-death-navy-football-team-returns-to-practice/  
     http://www.wbir.com/story/news/local/2014/04/02/navy-football-resumes-week-after-will-mckameys-death/7205139/ 
 
 >>> http://truth-out.org/news/item/14314-9-football-players-killed-by-brain-trauma

http://www.cnn.com/2012/01/27/health/big-hits-broken-dreams-brain-bank/

++http://www.nytimes.com/2014/01/27/sports/football/for-a-cowboys-star-with-dementia-time-is-running-out.html

+++ ibidhttp://www.usatoday.com/story/sports/college/2014/01/02/concussion-lawsuits-ncaa-consolidated-adrian-arrington/4293867/

--ibid

~http://www.theatlantic.com/entertainment/archive/2013/05/i-trusted-em-when-ncaa-schools-abandon-their-injured-athletes/275407/

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