04/23/2014 12:06 pm ET Updated Jun 23, 2014

Student Athletes or Employees: The Debate in Perspective (Part 2)

This is the second part of a two-part blog on this issue.

In the first blog, we defined the context and defined some of the parameters of this debate and concluded by agreeing with Donald Remy, NCAA attorney that "improvements need to be made". In this blog posting, we provide more analysis on why those improvements are necessary and set out recommendations and possible options for making those improvements.

Most of the press over the past month has centered on the NLRB ruling that stated that Northwestern University athletes were employees and that as such they had the right to form a union and bargain collectively.

While this was an interesting ruling, the fact of the matter is that when it comes to what is going on or not going on in college sports with regard to the treatment of "student-athletes", what happens at Northwestern is just the tip of the iceberg and does not go to the heart of the matter. Here's why.

The ruling only applies to private institutions. Public universities are governed by state laws. Only seventeen out of 120 to 125 (less than 15 percent) of the Football Bowl Subdivision I in which Northwestern competes are private. Northwestern is the only private institution in The Big Ten Conference (comprised of fourteen schools since 2014) of which it is a member.

More importantly, the issues confronting the NCAA and its member schools are systemic and not isolated to a type of institution, division level, or conference. They include: Substantial inequality in terms of sharing of wealth; insufficient attention to the needs of student athletes who no longer compete for an institution; significant variability among institutions in terms of student academic progress and graduation rates; and, especially bad results for male African-American student athletes.

Some of these more systemic issues are the subject of two pending lawsuits that could well make the Northwestern ruling and subsequent results pale in comparison. Former UCLA basketball star, Ed O'Bannon has filed an antitrust class action against the NCAA over its use of his and other players' likenesses for colleges' own financial gain.

Well known sports lawyer, Jeffrey Kessler, who has won cases for the players associations against the NFL and the NBA, has filed a restraint of trade class action suit against the NCAA and its five "power conferences." Kessler's goal is to strike down the restrictions that these conferences and the NCAA place on the compensation of college athletes, in terms of their athletic scholarships."

According to Inside Higher Ed, Kessler says "it's hard to distinguish big-time college football and basketball from their professional counterparts." Kessler states that his lawsuit is designed to "change the system".

The need for systemic change of big-time college sports was first brought to national attention by Walter Byers in his 1997 book, Unsportsmanlike Conduct: Exploiting College Athletes. Byers was the executive director of the NCAA from 1951 to 1987 so he had an insider's view of things. He argues that the major college sports (basketball and football) are "no longer a student activity: they are a high dollar commercial enterprise and college athletes should have the same access to the free market as their coaches and colleges."

More recently, Taylor Branch, Pulitzer Prize winning civil rights historian, has taken an in-depth look at these systemic problems and the inequities of the college sports reward system. He did so first in an article, "The Shame of College Sports" published in The Atlantic in the October 2011. He followed up in 2013 with an e-book, The Cartel: Inside the Rise and Imminent Fall of the NCAA, which incorporates some of the material from The Atlantic article.

Branch takes dead aim at the concept of "student athlete". He writes, "The term is meant to conjure the nobility of amateurism and the precedence of scholarship over athletic endeavors. But the origins of 'student-athlete' lie not in a disinterested ideal but in a sophisticated formulation designed, as sports economist Andrew Zimbalist has written to help the NCAA in its fights "against workers' compensation insurance claims for injured football players."

Branch quotes Walter Byers who wrote, "We crafted the term student-athlete and soon it was embedded in all NCAA rules and interpretations." He observes, "Student-athlete became the NCAA's signature term, repeated constantly in and out of courtrooms. Using the "student-athlete" defense, colleges have compiled a string of victories in liability cases."

The inevitable conclusion from all of this is that there is a need for change and improvement of the NCAA's existing system. Some such as Byers, Branch and attorney Kessler see the need for radical reform. Others see a need for minor to modest reform.

For example, in reacting to the class action lawsuit brought by Jeffrey Kessler, Mike Arresco, commissioner of the American Athletic conference -- which is not named in the suit stated, "It's a model (the current approach) that has worked. I think it can be tweaked. There's no question we are embracing enhanced benefits for student athletes, but we're not talking about paying them.

On NBC's Meet the Press on March 23, NCAA President Mark Emmert, fell into the "tweaking" category as well. He commented that universities have twice voted down providing student athletes with "a couple of thousand dollars in miscellaneous expense allowance." He went on note that he felt a proposal along these lines would be implemented soon stating, "I have every reason to believe that's going to be in place some time this year." Emmert also indicated that he thought it made sense to provide some type of assistance to athletes who are no longer competing in sports to help them complete their degree

On the same show, Education Secretary Arne Duncan, who played college basketball at Harvard, recommended a little less incremental approach. He advocated tying the pay of college coaches to their student-athletes' academic performance and graduation. He criticized institutional leadership saying, "And university presidents and boards have been very complacent and soft in this issue."

So, what type of reform is needed: minor, modest, radical? None of the above. Based upon our analysis, put us in the camp for major reform. As we said near the outset in Part I of this blog, we think that:

  • Most of those in college sports are student athletes
  • Some of those are workers (even if only itinerant)
  • All, no matter what their classification, deserve to be treated fairly

The current system is not fair. It needs to be made so.

At a minimum, significant improvements need to be made in areas such as: ensuring adequate financial support in addition to the basic scholarship; compensating athletes when their images or likenesses or used as revenue generators for the NCAA or university; providing long term health insurance and disability coverage for injuries incurred while participating in college sports; increasing the penalties and sanctions for universities with substandard performance on student graduation and academic progress; closing the huge gap between black male student-athletes and while male athletes in terms of graduation.

There is something else that needs to be changed and that is the rules of engagement. As the data shows, at the Division I level (and maybe at other levels as well) there is a group of schools in both basketball and football that field teams that are competitive on both the playing field and in the classroom. There is another group that competes well on the playing field but not in the classroom.

Those schools in both groups compete against one another as if they are equal. That's because of the current nature of the rules.

We recommend changing the rules to create two leagues within Division I for both football and basketball. One league would be called the Student-Athlete League and be comprised of all schools with student graduation rates of 70 percent or better. The other league would be called the Athlete-Student League and be comprised of all schools with student graduation rates of 69 percent or less.

There are some who have written that the concept of student-athlete is a mythical one. We don't believe that to be true across the board. We do believe it to be true at certain universities, however.

Patrick T. Harker, president of the University of Delaware and a member of the Division I NCAA Board puts it this way, "Without question, some big schools have lost their way. On some campuses the pursuit of athletic dominance has eroded the ideal of the student athlete."

But, at some schools, that ideal lives on for now and for a life time. Consider Bo Ryan and his University of Wisconsin basketball team.

According to the New York Times Coach Ryan looks for three things in recruits for his squad: "good students, hard workers, and good listeners." Specifically, Ryan looks for "People that are pretty focused on what's going to happen in the next 60 years as well as they are focused on what's going to happen in the next couple years, because that's what we're preparing people for as coaches. We're preparing them for when they're in their 30s, 40s, 50s, 60s, 70s, and 80s."

Student athlete or employee -- it's a false dichotomy. We shouldn't throw the student athlete out with the employee bathwater.

Nor, should we falsely assign that label to everyone who dons a uniform on a college campus. That turns the term into an oxymoron.

What we need is truth in packaging and promotion. What we also need is a system that puts the concerns of all of those who participate in college sports first. Finally, what we need is an appropriate sharing of the wealth among those who contribute to making college sports a profitable proposition.

We need that for the sake of students, the integrity of colleges, the credibility of the NCAA, and the belief of sports fans.

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