Empower, don't employ, students

Northwestern quarterback Kain Colter speaks at a news conference announcing the first labor union for college athletes while College Athletes Players Association president Ramogi Huma, left, and other union leaders look on. AP Photo/Paul Beaty

Last week's National Labor Relations Board decision in Northwestern v. College Athletes Players Association recast football players as employees rather than students, allowing them to unionize and collectively bargain. In response, the Women's Sports Foundation is asking the NCAA and collegiate athletics to pivot toward a sports model consistent with the soul of higher education, which includes representation on the NCAA Board of Directors for all athletes, including women.

The Women's Sports Foundation has been advocating on behalf of the educational mission of athletics for more than 40 years. Our research has long trumpeted the idea that including sports as part of education isn't just a good investment for the competing athletes, but that sports participation also benefits our economy and global community.

We hope college athletics will stay an important part of education, and think that any bargained-for benefits for men will be provided to roughly the same number of female athletes. But without a pivot toward sharing power to ensure educational outcomes, NCAA policies can't serve the athletes' educational needs.

Over the past 10 years, more than a billion dollars in new media money rolled into the NCAA and the BCS conferences, yet women actually saw a backslide in gender equity. That's right, the additional money -- a lot more money -- didn't close the gap between men's and women's opportunities. According to WSF research on NCAA scholarship statistics, men receive $190 million more in athletic aid than women. In addition, the number of women working in college athletics, particularly as coaches, continues to drop.

What about other athletes? During that same time, Division 1 men's non-revenue sports programs saw a net loss of 121 programs, while Divisions II and III saw gains of more than 400 new programs each. Meanwhile, football players cannot get injury insurance, common-sense rules changes responsive to recent research to protect brain health or more time to focus on academics. So the truth is, all athletes are in the same boat, but for different reasons. Only voting power on the NCAA Executive Committee and the Board of Directors can change these realities for athletes.

That's why we think the Northwestern decision represents a not-to-be-missed opportunity to shape the collegiate athletic experience back toward one that provides a greater benefit to taxpayers and economically rewards educational values, forgoing tax revenue in exchange for a better-prepared, healthier, more-productive workforce. That can't happen without voices and votes.

College athletics as a for-profit business

Under the athletes-are-employees model, the football enterprise would move to a for-profit business model. The football program would be required to pay market rates for its athlete services. Once athletes were declared employees, colleges and universities wouldn't be able to act collectively to limit the amount of money paid to their employees under anti-trust law, any more than the NCAA can limit the amount a basketball coach is paid. And all sorts of other expenses would flow from making the athlete an employee, such as paying worker's compensation, paying minimum wage and paying costs associated with collective bargaining.

In addition, important revenue sources would be gone under a for-profit business model. The economic model doesn't allow for donors' tax deductions, for facilities to be built with tax-free bonds, or for money to flow into athletics departments from student-fees or directly from the university.

And current revenue sources, like profits on ticket sales, media rights, corporate sponsorships and concessions, would be subject to taxes. So you can see, moving to a for-profit business model would upend the apple cart.

The loss of significant revenue streams plus additional taxes and expenses makes the for-profit option not a true viable one. Title IX requirements would be the least of a collegiate administrator's worries.

An educational economic model

Under Title IX, if collegiate football retains its economic status as an educational activity, women will share in any benefits that male football players win under collective bargaining. Title IX would still require treating female student athletes equitably, even when the benefits to their male counterparts are obtained by collective bargaining.

Long-settled law requires that regardless of the source of funds, schools retain the obligation to treat men and women equitably. For example, boosters' contributions cannot allow schools to treat males and females inequitably. Media or ticket revenue from a sport can't be used to create an inequity.

So if football players collectively bargain for health insurance, for fewer hits during practice, more study time, more lucrative scholarships or wages, women would be provided those same benefits under Title IX, so long as they are students.

But this protection is limited. If a school provides collectively bargained benefits for, say, 97 men (85 football players and 12 basketball players), the law would provide the same benefits for only 97 female athletes, assuming the school is providing half the sports opportunities to female athletes. But this outcome does nothing for men in soccer, tennis, baseball, track and wrestling.

That's all the more reason to change the circumstances of the athlete experience, so that athletes do not meet the legal definition of "employee" -- spending 60 hours a week on their sport, and another 20 on academics. If the numbers were flipped, courts would not be able to claim that the athletes were employees, and all athletes would benefit from a more sane athletic experience.

Any Title IX focus is rightly viewed as support for the educational mission of athletics. But the law should not be used to defend a commercial enterprise that continues to operate under the cloak of the university's educational economic model, particularly when it does not represent the varied interests of athletes.

Nancy Hogshead-Makar, an attorney and three-time Olympic gold medalist, is Senior Director of Advocacy with the Women's Sports Foundation.