Ohio State star quarterback Cardale Jones' famous tweet in 2012, "Why should we have to go to class if we came here to play FOOTBALL We ain't come to play SCHOOL classes are POINTLESS," was shocking only in its candor; everyone understands that, as the NCAA President put it, the student-athletes in the major conference schools "come to college to play sports while earning a degree." The double standards that govern the admission, education and safety of revenue-generating athletes are allowed to continue because such a dual regime appears to benefit all concerned: the athletes can focus on the sports they want to play; the schools profit mightily from their play; the public enjoys near professional competition and the faculties' and regular students' academic bona fides remains largely uncontaminated. Defending this system against those who object that a special regime for athletes undermines what college is supposed to be about, the NCAA promotes the concept of the student-athlete, a PR strategy that everyone has come to realize defies what it has traditionally meant to be a student.
Everyone that is but the handful of Division I schools that count themselves among the academically elite of American universities, including, most prominently, Stanford, Cal-Berkley, Michigan, Duke, Vanderbilt and Northwestern. To them, the student-athlete is far from mythical; it is a proud reality. To prove that reality, however, these schools need to explain how they have resolved a fundamental contradiction: on the one hand, the elites know that in order to compete effectively they must lower their standards not only for their students' academic performance, but also for the physical risks inherent in school-sponsored student activities. On the other hand, to admit to such lower standards would compromise their claims that they are in fact academically superior and equally concerned for all their students' safety. One might hope this contradiction would generate at least a serious discussion as to whether these schools should do more to protect not only their players' health and education, but also their core educational mission. Instead, the schools have responded with a combination of puffery, disregard and denial. Officials who do acknowledge the fact of dual standards for revenue-generating athletes are quickly rebuked, as University of Michigan's new President learned when he was forced to recant his impolitic observation that the school's recruited athletes are not as qualified as the other students.
As the special case of Northwestern illustrates, the contradictions will persist as long as the conflicts of interest endemic to the structure of Division I football persist. Without governance reforms that will put the players' education and safety ahead of the coaches' and schools' money-making priorities, the academically elite Division I colleges' claim to a higher ground is pure hypocrisy.
The special challenges Northwestern faces in claiming to be the true home of the scholar-athlete.
Northwestern, where I have taught in the law school for 40 years and chaired the faculty government, has long claimed itself the true home of the scholar-athlete. The administration, therefore, suffered rude awakenings, first, when the football players decided that a union authorization vote was needed to protect them from their own program and, second, when the NLRB hearing officer found that football's monopolization of the players' time and regimentation of their lives made them more like employees than students. Instead of seizing these challenges as a wake-up call for collective fact-finding and soul-searching as to how better to uphold the School's core values, Northwestern officials are appealing the NLRB decision and professing the righteousness of their program. They have claimed to the NLRB not only that their football players' grades, graduation rates and post-graduation employment prove their academic parity with other students, but also, incredibly, that the School admits its football players for their academic, rather than their athletic, prowess. They refuse to release the aggregate admissions scores that would substantiate this claim, which is belied by the fact that the coaches travel the country to recruit high school players with the most athletic prowess, that the players are given special counseling, tutoring and monitoring services to help them pass their courses, and that the players are overrepresented in departments offering what most students consider less demanding majors.
But, even if the football players had the same academic motivation and credentials as other students, the crucial question would remain of whether they are able to take advantage of the opportunities other students have to pursue the goals of a liberal education. Those goals require great universities to do more than graduate employable students. They must seek to empower their students to explore their intellectual and esthetic passions, to test their capabilities, to risk taking wrong paths, to think critically from diverse perspectives and to reflect on who they are and who they want to become, or, as summarized by University of Chicago President Robert Hutchins, who abolished the School's once powerful football program in the 1930s, "education is not to reform students or amuse them or to make them expert technicians. It is to unsettle their minds, widen their horizons, inflame their intellects, teach them to think straight, if possible." The question of how even the most academically motivated football players can focus on these goals of a liberal education when they must work half the year for up to 50 strictly programmed hours a week on an exhausting, punishing sport and then train for that sport the rest of year is one that schools which claim to prioritize academics should no longer be allowed to conveniently ignore.
Northwestern is a prime exemplar of Division I schools' failures to adequately protect their football players' health.
That university presidents do ignore this question should not, however, be surprising. They would not be presidents if they weren't practical people who appreciate the job-threatening costs if they were to challenge Division I football's massive economic and cultural power for the sake of the amorphous, long-range benefits of upholding the players' equal opportunities for a liberal education. More than traditional cost-benefit analysis is needed, however, to rationalize what even the NCAA now recognizes is football's substantial risk of permanent brain damage. Even if it could be assumed that students in their late teens and early twenties could meaningfully appraise the still unfolding risks from concussions, subconcussions and the everyday collisions endemic to football, our society does not normally condone individuals' voluntary submission to the risk of being battered and maimed without a significant public interest. Here, the players have an interest in playing a sport they presumably love and the universities have an interest in profiting from their play, but the public interest ultimately comes down to no more than spectator satisfaction. College presidents have not seen fit to address this fundamentally moral challenge to their football programs, perhaps worried that embarrassing analogies to the spirit of the Roman coliseum might become too evident. The comparisons, however, would become less embarrassing if the schools would at least begin to take seriously their responsibility for the terrible risks they encourage their football players to take.
Here, all Division I schools must share in the NCAA's blame for having disregarded safeguards against concussions that medical organizations have been demanding for over a decade. Were these schools now finally to recognize that they do owe their players a duty not only to provide the best medical practices, but also to mitigate any post-graduation mental, physical and economic harms resulting from their football injuries, they would be doing far more than following concussion protocols of uncertain effectiveness. As a first step, they would study football's long-term health effects on their former players and then after identifying those with mental and physical disabilities plausibly linked to college football offer them appropriate health insurance and compensation.
If Northwestern is any example, however, owning up to a responsibility for their football players' physical risks is exactly the opposite of what the schools are doing. By requiring its football players to sign "acknowledgment of risk" forms, which it is so far refusing to make public, Northwestern appears to be trying to deny any responsibility for the harms football has caused its players. Whether it will thereby escape having to make the type of compensatory payments that the NFL is having to pay to its brain-damaged former players, Northwestern's approach sacrifices moral principle for profit. In telling its players in effect 'you are adults who know the risks, so don't look to us if you don't like the consequences,' the University appears oblivious to a critical difference between it and the NFL. On the one hand, pro-football players with the help of their union and sports agents are handsomely compensated for subjecting their brains to the risk of life-threatening injuries; on the other hand, Northwestern not only takes most of the money it makes from similar risk-taking by its players, it is fighting hard to deny them independent representation under the pretense that its only priority is player safety. But, that is manifestly not the case
Only systemic governance reforms will protect football players' health and education from their schools' and coaches' conflicting interests.
In campaigning to pressure his football players to vote against the union, Coach Fitzgerald is quoted as promising to get them whatever they need. What they need, however, is not ad hoc, piecemeal measures strategically offered to placate their sporadic discontents. What they need, instead, is thorough systemic changes in the management of their football program so that the players' health and education take priority over the many competing interests that are endemic to the structure of Division I football. Most of what coaches do to win and what colleges do to increase football revenues have potentially adverse effects on their players as well as on the schools' academic values; for example: the longer and tougher the practices, the better the chances the team will win and the coaches and schools will make more money, but the greater the chances the players will be injured and denied educational opportunities; Similarly, coaches and schools benefit and players sacrifice the more games played, the sooner injured players are returned to play, the easier athletic scholarships are pulled and the less schools spend on player health care and insurance coverage. The seriousness of these types of conflicts for players' health has been underscored by the recent revelations of schools' widespread underreporting of concussions, of coaches' pressuring medical staff to approve sidelined players' return to play, of the subjectivity of sideline medical judgments which gives cover to such approvals, of the high percentage of injuries during practices and of the pervasive secrecy that shields coaches and staff from outside scrutiny as to the impact of their practices. Finally, on the academic side, by lowering the standards for their players' admission and education, the schools increase their chances of winning by increasing their pool of eligible players, but all at the cost of their academic values.
In giving the power to decide what are and are not academically sound and medically safe practices to those whose financial interests depend on winning games, Division I schools are violating the fundamental principle of corporate and governmental risk management that risks should not be managed by those who will profit from more risk. Without predetermined lines that a university has determined it will not cross for the sake of winning, human nature and history teaches that such lines will be drawn in ad hoc ways that will end up putting the deciders' interests ahead of everyone else's. Unless coaches and administrators can cite evidence that they as a professional class are somehow immune from the conscious and subconscious motivations of economic self-interest, then, prudent management and a respect for the well-being of football players requires that line drawing and enforcement authority be vested in a body whose members do not have a financial stake in how they draw and enforce the lines that should never be crossed.
In refusing to recognize any conflicts of interest in its football program's operation, Northwestern's President points to its faculty sports oversight committee as sufficient independent protection for the football players' welfare. Such committees, however, make a charade of both independence and oversight. Their volunteer members are appointed by the President, they have no authority to override coaches or effectuate policy changes and at Northwestern are even explicitly barred from having any involvement in the operations of the athletic department.
Sadly for believers in the social importance of faculties' independent exercise of their highly cultivated powers of analytical reasoning, even when free of Administration oversight, they have acted more as football cheerleaders than as guardians of their students' educational and physical welfare. After Northwestern's football program's dysfunctions had been exposed by the players' call for a union vote and the NLRB's findings of their treatment as employees rather than students, the School's faculty government rejected calls even to look into whether the players needed greater protections. In this regard, Northwestern's faculty is typical of other Division I schools. Whether owing to self-interest, disinterest or plain boosterism, Division I faculty bodies' failure to challenge their Administrations' cliché-ridden defenses of their football programs represents a failure in their essential function of upholding the truth-seeking norms of academic inquiry and critique. Just as it has taken the external pressures of lawsuits, press reports and law enforcement to remedy major abuses in Division I football, meaningful reform in how schools operate their football programs will require acceptance of oversight by truly independent multidisciplinary committees that can establish and enforce academic and health standards untainted by the conflicts of interest inherent in the profit-making motives of coaches and administrators.
Such committees, of course, in light of Division I football's inherent violence and time demands, could not be expected to eliminate all health and educational disparities between the football players and other students. Nevertheless, if their first task were to determine what baseline educational and health needs are necessary in order for all students to have an opportunity for a liberal education in as safe an environment as football allows, it could make a real difference by forcing coaches to accommodate what they believe is needed to field winning teams to those baseline requirements. Furthermore, as an added benefit, by providing a school-based check on coaches' and administrators' incentives to profit at their players' expense, an independent, authoritative oversight committee focused only on protecting the players' welfare and the school's academic values should reduce the occasions for the notoriously inconsistent, dilatory and unpredictable imposition of NCAA sanctions.
If coaches come to believe they cannot effectively compete within the constraints of those baseline educational and safety requirements, then the presidents and trustees will no longer be able to hide behind the myth of the student athlete and medical uncertainties as to who and how many players will actually suffer permanent brain injury. Instead, they will finally have to confront openly the question that goes to the heart of what universities should be about: why do big-time football's benefits outweigh its known and potential harms to the school's academic values and the players' health and education. Critics may be right that the lack of a principled answer to this question won't matter because the financial and public relations benefits of football are simply too great for the leaders of Division I universities, whether academically elite or not, to cede any of their control over football to those who do not have winning as their primary mission.
Nevertheless, the presidents of the elite universities still identify themselves as committed academics and their trustees by and large profess their belief in both the ideal of the scholar-athlete and the values of a liberal education. In this, there may be a glimmer of hope that at some point they will no longer find tolerable the contradictions between their football programs and their values as teachers, scholars and responsible school administrators. Then, maybe they will find the will to implement the reforms that can become models for all Division I school leaders who no longer want to tolerate a double standard for their football players' health and education. Unfortunately, for that point to be reached, we may have to wait until the progression of academic scandals, health tragedies and threats of massive liability becomes too great for the public to tolerate.
John Elson is Emeritus Professor of Law at Northwestern University.