The Final 4 is set. #1 overall seed Florida gets a chance at redemption against UConn, one of just two teams to beat the Gators this year. Wisconsin, the other team who has beaten Florida, will play Kentucky.
Florida is a team with a lot of experience., The Gators made three straight Elite 8s before finally cutting down the nets in Memphis Saturday. Congratulations to Billy Donovan, one of the best coaches in college basketball, for getting his team over the hump and into the sport's final weekend.
Wisconsin is making their first trip to the Final 4 under Bo Ryan. UConn is making their first trip under new coach Kevin Ollie. Both teams have star upperclassmen in Shabazz Napier and Frank Kaminsky who have grown into bonafide superstars this year. There's plenty to like about both teams as they square off to play SEC opponents in Texas next weekend.
But I find the timing of this year's NCAA tournament to be very ironic.
This year's NCAA tournament has served as a distraction from a much larger issue: the Northwestern football team's victory with the National Labor Relations Board (NLRB) Regional Director on March 26, in which they successfully qualified themselves as employees of Northwestern University--employees with the ability to unionize and bargain collectively. This may very well be another nail in the NCAA amateurism coffin.
A few things to note about the decision.
First, Northwestern is a private university, and the decision therefore does not yet apply to the public universities who are, in large part, the worst offenders. The large public schools profit most off the free labor NCAA amateurism provides.
Second, Northwestern graduates close to 97% of their "student-athletes," one of the highest graduation rates in the country. This means athletes at private schools with lower graduation rates will have an easier case to make in showing they are employed athletes for their institutions and not just students.
Third, it should be noted that the NLRB decision will have to stand up to appeals at the national level. The Northwestern players have already indicated their intent to take the case that far, and a few of them are traveling to Washington to meet with Congress this week.
Finally, it also should be mentioned that at this point, the Northwestern players have not indicated they will be seeking any share of the football program's revenue, and instead have focused on obtaining health insurance from the university to cover football-related injuries. But eventual monetary compensation seems to be the logical end as the NCAA and their "student-athletes" start down this path toward reclassification.
This classification was a long time coming. In fact, it took some clever rhetorical changes in the 1950s and 60s to delay the "employee" classification for as long as it has.
In 1953, University of Denver football player Ernest Nemeth successfully argued that collegiate football players fit under the definition of "employee" under Colorado's workers compensation statute, meaning the university was required to provide worker's compensation for Nemeth's football injuries. This decision was upheld by the Colorado State Supreme Court, a decision which shocked the NCAA.
In response, the NCAA changed their language to re-emphasize academics. They invented the term: "student-athlete."
Walter Byers, who served as the NCAA Executive Director at the time, later wrote:
"[The] threat was the dreaded notion that NCAA athletes could be identified as employees by state industrial commissions and the courts. [To address that threat, we] crafted the term student-athlete and soon it was embedded in all NCAA rules and interpretations as a mandated substitute for such words as 'players' and 'athletes.' We told college publicists to speak of 'college teams,' not football or basketball 'clubs,' a word common to the pros."
After slapping on a brand new "student-athlete" label, the NCAA suffered another blow 10 years later.
In 1963, the California Supreme Court ruled that Cal Poly football player Gary Van Horn (who died in a 1960 plane crash when returning from a football game) was an employee of the University, meaning his widow and dependent children were eligible for death benefits under California worker's compensation law. In the decision, the California Supreme Court indicated that a clear connection could be drawn between Van Horn's expected participation in the Cal Poly football program and Van Horn's athletic scholarship. The decision established a precedent in which a college athlete could have a contract of employment with a university where the scholarship was the only form of compensation for services.
So when the "student-athlete" label did not resolve the issue on its own, the NCAA then decided to promote new verbage in their scholarship "contracts." The NCAA encouraged this specific language:
"This award is made in accordance with...the principles of amateurism, sound academic standards, and financial aid to student athletes...Your acceptance of the award means you agree with these principles and are bound by them."
This contract language meant athletes could only receive compensation (in the form of the scholarship) in exchange for renouncing all commercial or pecuniary rights that could arise in the course of the athlete's relationship with their university. Because there is no significant competitor to the NCAA for collegiate athletes in the US, college athletes had no choice but to accept the terms that the NCAA provided.
The new language had the sole purpose of allowing NCAA member institutions to avoid legal responsibilities as employers. And as NCAA commercial revenue has risen exponentially in the 50 years since Gary Van Horn, the NCAA has collected an immense amount of unjust profits as a result.
But the course of conduct between the universities and their athletes never changed.
Scholarship athletes were still expected to participate in athletics, or else risk losing their scholarship. The employee-employer relationship still existed, and the NCAA simply took advantage of a strong bargaining position to contract over the issue. This strategy paid major dividends to the NCAA for over 50 years.
The recent NLRB decision by Regional Director Peter Sung Ohr recognized this. His decision went into great detail on the revenue and benefits received by the school, revenue that is wholly dependent on the participation of Northwestern football players in the football program. Ohr also noted that the Northwestern coaching staff exerts an inordinate amount of control over their players lives, devoting nearly half of a 24-page opinion to Northwestern practice schedules, required workouts, final say on living arrangements, vehicle registration, control over player use of social media, dress code, restrictions on off-campus travel, and other elements of increased institutional control over football players. Ohr surmised that this amount of control was much more analogous to an employer-employee relationship than a typical school-student relationship. And he decided that Northwestern athletes should be allowed to unionize accordingly, as employees.
While the ruling won't change the landscape of college athletics any time soon, it can certainly be viewed as a strong victory for college athletes and a resounding loss by the NCAA. The athletes have won a significant battle here. As the case progresses through appeals at the federal level, only time will tell if they will win the war.
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