On why the NCAA should love Name, Image, and Likeness bills, how the risk of CTE should shape the athlete compensation discussion, and the ethics of football fandom.
College sports fans and politicians have increasingly
focused on the rights of college athletes, especially their ability them
to profit from their own name, image, and likeness. California blazed a
trail with the Fair Pay to Play Act, and many states
have followed suit, including Florida (Black & Gold Banneret
previously talked with Florida State Representative Chip LaMarca
regarding his NIL bill – you can find that podcast here).
As part of our continuing discussion on NIL issues, we
interviewed Dr. Nathan Kalman-Lamb, one of the leading academics on
labor issues and exploitation in sports. Dr. Kalman-Lamb is a Lecturing
Fellow at Duke University. In addition to scholarly journals, Dr.
Kalman-Lamb’s writing appears in outlets like the Los Angeles Review of Books and The Chronicle of Higher Education. He is the author of Game Misconduct: Injury, Fandom, and the Business of Sports.
There’s a trend towards recognition — by the
public and by state governments like California and Florida — that
college athletes deserve more than the NCAA allows. We’re seeing that
addressed by a wave of bills allowing college athletes to profit from
their name, image, and likeness. Is that the right fix?
If we want to think in an ethical way about the question
of compensation in college sport, we need to stop using the status quo
as a measuring stick. From the standpoint of what the NCAA and member
institutions currently offer players, yes, NIL rights are a meaningful
improvement. But, that, to me, is something of a red herring. Because,
if we want to take seriously the question of what players deserve, we
need to think about high revenue college sport in terms of what it
actually is: commodity spectacle produced through the labor of athletes.
If we think of college sport in those terms, it frames this discussion a
little differently--it raises the question of why we would ever
consider it justifiable in the first place for workers to be barred from
the fruits of their labor so that others can reap the benefits.
If we think of compensation issues in college sport in
the terms I have just laid out, NIL rights don’t look like the big win
for campus athletic workers they have been made out to be. In fact, as I
have argued elsewhere,
the big winner with NIL rights might be the NCAA itself. After all, we
are talking about promotional money that will come from outside the
universities -- money the athletes will need to perform additional
promotional labor to receive. And, most importantly, this means that we
will not be talking about actual compensation by the NCAA and
universities for the labor athletes perform in order to produce the
spectacle fans love. That form of compensation would put a major dent in
the revenue of universities, but NIL is actually a buffer against that
feared outcome, I think, because it will silence cries of exploitation
and thereby cleanse the guilty consciences of fans.
There
is one final part of this equation I also want to address, and that is
the fact that NIL focuses our attention on compensation as if that is
the full measure of exploitation in college sport. The fact that college
athletes provide labor--produce a commodity--yet are treated like they
aren’t workers is not just a problem from the standpoint of
compensation. It also means that college athletes don’t have protections
for their working conditions -- occupational health and safety
provisions. Likewise, it means they don’t have union rights that would
allow them to defend themselves from abusive coaches and inhumane
training regimes (not to mention negotiate the sort of revenue share
enjoyed by their professional peers).
So, my short answer is this: NIL is the wrong fix
for athletes, because it ensures that they will continue to be
exploited for their labor. But, for that very reason, it is a perfect
fix for the NCAA.
So is this an argument against incrementalism --
because NIL gives the NCAA a degree of cover which may be
counterproductive long-term? Or you’d agree better NIL than nothing, as
long as we don’t deceive ourselves into thinking it’s sufficient?
I think, more than anything, I mean this as a reminder to
the folks who care about the rights of NCAA athletic workers that we
shouldn’t rest on this success. It’s easy to get caught up in the
celebration of potential changes that have been decades in the making,
but if we do, we allow the long con that is NCAA amateurism to persist
under a new guise. We owe the athletes better than that.
What do you make of the NCAA’s announcement
last month that it would start a process to permit college athletes
“the opportunity to benefit from the use of their name, image and
likeness in a manner consistent with the collegiate model?” Isn’t the
phrase “consistent with the college model” carrying an awful lot of
weight here?
Right, you hit the nail on the head. The salient phrases
of that passage are “collegiate model” and “benefit.” In order to
understand why, it’s useful to compare the language in the NCAA’s
announcement to the language of the California Fair Pay to Play Act.
The California legislation explicitly prohibits institutions of higher
education in the state other than community colleges from “preventing a
student participating in intercollegiate athletics from earning
compensation as a result of the use of the student’s name, image, or
likeness.” Notice the explicit use of “compensation” versus the
ambiguous term “benefit.” Note also the contrast between the reference
to the “collegiate model” -- aka ‘amateurism’ -- and the direct
repudiation of amateurism in a piece of legislation that outright
rejects the antiquated and essentially elitist principle by prohibiting
universities from imposing it.
Let’s look at a few of the other passages in the
guidelines the NCAA laid out for how the three divisions are supposed to
create opportunities around NIL.
The NCAA’s Board of Governors requires that any new
“benefits” associated with NIL must “assure student-athletes are treated
similarly to non-athlete students unless a compelling reason exists to
differentiate.” One might contend that a “compelling reason... to
differentiate” is the fact that so-called “student-athletes” are
providing the labor that makes a multi-billion dollar industry possible.
Then there is this: since when are college athletes actually treated
like “non-athlete students” by the NCAA itself? In fact, we know that
the education campus athletic workers receive is not the same as the
education of their peers. College athletes face academic clustering --
the practice of funneling them into classes perceived to be easier (i.e.
non-STEM classes) so that course work will not interfere with athletic
obligations and because coaches actually have clauses built into their contracts
that provide them with bonuses if players achieve requisite GPAs.
Moreover, players must build their academic schedule around team
responsibilities -- no mean feat -- and are not permitted to avail
themselves of the perks of an undergraduate degree such as study abroad
and other exciting summer programs because, you guessed it, they need to
be on campus working playing for their teams. And none of this
is to mention the fact that actually showing up in class energized and
alert when you are working forty-plus hours for a football team is
probably not the most realistic of expectations.
Finally,
recall my earlier argument that the NCAA’s greatest fear is that
players will be recognized as workers eligible for union rights, given
the potential for that to cut into the industry’s bottom line and
re-direct revenue into the pockets of the people who actually generate
it. The NCAA heads that issue off at the pass here, requiring that any
NIL liberalization “make clear that compensation for athletics
performance or participation is impermissible” and “reaffirm that
student-athletes are students first and not employees of the
university.” The bottom line is that the bottom line must be protected
at all costs.
Politicians and other proponents of NIL bills
have sometimes characterized these efforts as getting college athletes
access to the “free market.” Is that the appropriate way to think about these issues?
My take on this may be different than other proponents of college athlete compensation. The argument of most -- the Jay Bilas position,
if you will -- is that college athletes should have the same rights as
any other actors in U.S. free market capitalism. Amateurism rules
prohibit compensation for labor or likeness and thus operate as an
unjust constraint on the economic freedom of this specific group of
American workers. That’s a perfectly logical position and a consistent
application of neoclassical economic thought, if you will forgive me the
academic jargon.
The problem for me with that position is not that it is
incorrect about the question of economic rights, but rather that the
singular focus on the worker as economic actor does not account for
other critical dimensions of the laborer’s experience as laborer. My
concern is with the broader question of working conditions. How can we
protect athletes from the physical, psychological, and emotional harm
that seem to be endemic to capitalist high-performance sport?
Compensation won’t cover the cost of the trauma associated with
life-changing and debilitating injury or the heartbreak of devoting
one’s life to the dream of an athletic career that doesn’t end with
going pro. However, union rights would at least allow athletes some
measure of opportunity to protect their interests and well-being, and to
get the most out of the college athletic experience in a holistic and
self-determined sense.
How do the physical risks that athletes face
influence the way we should think about these issues, and what would you
say to the perspective that the physical risks are part of the game?
I’m thrilled you’re asking me this question, because for
me this is the most important part of the conversation about
exploitation in college sports. I completely reject the premise that
physical risks are ‘part of the game,’ or, to be more precise, that they
should be. High-performance sport is not a natural dimension
of human experience, it is a construct, and a fairly youthful one at
that. The more we learn about the harm to the body associated with elite
sport, the more clear it becomes that we are asking too much of our
athletes.
While I feel this argument holds for the vast majority of
college sports, I cannot help but focus on football because of what we
now know about the long-term harm inflicted by head injury. Boston
University researchers found in 2017 that 91% of deceased former college football players’
brains had evidence of chronic traumatic encephalopathy (CTE), a
degenerative neurological condition. Moreover, since 2014, there have
been eleven heat stroke deaths
in college football from over-training. The harm associated with
football is both extreme, and, I would argue, quite possibly inevitable.
Can you elaborate on the emerging science
surrounding CTE risk and the BU study specifically? Isn’t there
selection bias resulting from the fact that CTE can only be detected
following autopsy? What player would consent to have their brain studied
after death, if not someone who had some reason to be concerned about
CTE or other head injury?
My
expertise as a researcher is not in the STEM fields, let alone the
neurological sciences, so I don’t want to get to deep into the weeds on
this. Clearly, one of the challenges for the researchers at BU is access
to brains for their study. This means that their research actually
becomes more persuasive every year, as their sample size and range of
brain samples increases. And, by the way, there are football players
without symptoms of CTE donating their brains because at this point all
players have reason to be worried about what the game is doing to their
brains and those of their friends and colleagues. In fact, just
recently, those same researchers have revealed, based on a sample that
now includes a control group of non-CTE football players’ brains, that
the chances of contracting CTE double with every 2.6 years of participation in football.
So, if the question is do I think 91% of college football
players will have CTE, the answer is probably not. But, I think the
more relevant question is whether football, particularly prolonged
participation in football, leads to various forms of harm to the brain,
including CTE. I think we have very compelling evidence that the answer
to that question is yes.
Now, there’s another aspect to this equation we haven’t
discussed yet, which is that most people respond to this argument about
harm and football by saying that athletes know what they signed up for.
In other words, they have consented to participate and they have
willingly taken on the above risks. That, too, is a proposition I
reject. Consent is an easy concept in a vacuum. I either want something
or I do not. That simplicity is complicated when we start to consider
the structural context that frames the choices we make. What are the
conditions that produce the options in front of me? I would argue that
capitalism, structural racism, and patriarchy shape our capacity to
consent. If society systematically denies me access to opportunities
other than sport, am I really consenting to sacrifice my body at the
altar of the NCAA when I accept a scholarship, or is that a choice
informed by constraint, even coercion? That would be my contention.
Indeed, the sheer inaccessibility of higher education in
the United States is itself a structural constraint on the decisions of
athletes to participate in NCAA sport. This in turn means that the fact
that we are sacrificing disproportionately Black athletes
to the various forms of harm inflicted by the gridiron -- and then
refusing to compensate them in a meaningful way for that sacrifice -- is
an unconscionable systemic injustice that implicates so many of us,
from the folks who watch, cheer, and extract meaning -- fans -- to faculty
empowered to nurture these very same students. We are not the ones who
set this system in motion, but we share a responsibility to campus
athletic workers to create the conditions for them to have the most
enriching and least harmful college experience possible.
Right now, we are all catastrophically failing in that endeavor.
What should fans do to be more ethical
“consumers” of sports? Or do you even agree that it’s possible to be an
ethical consumer of more dangerous sports like football or hockey?
Let me start by saying I understand why fans love sports,
because I love sports. I came to my research on sport from the position
of fan far more than participant. However, I also think that as fans,
we need to put our own investments to the side and interrogate the
extent to which the spectacle we love is causing harm, and, more than
that, the extent to which our fandom is actually fueling that harm.
Because, like it or not, the political economy--the business--of sport,
including high revenue college sport, is predicated on the spectatorial
market. Without fans, there is no money to be made. It is in this sense
that fans are complicit in the harm caused by sports like football and
hockey.
This is a long way of saying that, short of profound and
sweeping rule changes that strip away the violence, I don’t think it is
possible to be an ethical consumer of collision sports. It brings me no
pleasure to say it, but I don’t know how we can persist
in a pastime that we know systematically requires the sacrifice of
children, teenagers, and adults for any reason, whether it is the
pleasure experienced by the fan, or, worse, the cash coveted by the
governing institutions of professionalized sport. Something needs to
change, and much like with the NCAA itself, that change isn’t coming
from the top.
