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.
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.
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.”
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.”