[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
BIG LABOR ON COLLEGE CAMPUSES:
EXAMINING THE CONSEQUENCES
OF UNIONIZING STUDENT ATHLETES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 8, 2014
__________
Serial No. 113-58
__________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Robert C. ``Bobby'' Scott,
Joe Wilson, South Carolina Virginia
Virginia Foxx, North Carolina Ruben Hinojosa, Texas
Tom Price, Georgia Carolyn McCarthy, New York
Kenny Marchant, Texas John F. Tierney, Massachusetts
Duncan Hunter, California Rush Holt, New Jersey
David P. Roe, Tennessee Susan A. Davis, California
Glenn Thompson, Pennsylvania Raul M. Grijalva, Arizona
Tim Walberg, Michigan Timothy H. Bishop, New York
Matt Salmon, Arizona David Loebsack, Iowa
Brett Guthrie, Kentucky Joe Courtney, Connecticut
Scott DesJarlais, Tennessee Marcia L. Fudge, Ohio
Todd Rokita, Indiana Jared Polis, Colorado
Larry Bucshon, Indiana Gregorio Kilili Camacho Sablan,
Trey Gowdy, South Carolina Northern Mariana Islands
Lou Barletta, Pennsylvania Frederica S. Wilson, Florida
Joseph J. Heck, Nevada Suzanne Bonamici, Oregon
Susan W. Brooks, Indiana Mark Pocan, Wisconsin
Richard Hudson, North Carolina Mark Takano, California
Luke Messer, Indiana
Bradley Byrne, Alabama
Juliane Sullivan, Staff Director
Jody Calemine, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on May 8, 2014...................................... 1
Statement of Members:
Kline, Hon. John, Chairman, Committee on Education and the
Workforce.................................................. 1
Prepared statement of.................................... 3
Miller, Hon. George, Senior Democratic Member, Committee on
Education and the Workforce................................ 4
Prepared statement of.................................... 6
Statement of Witnesses:
Eilers, Patrick, C., Managing Director, Madison Dearborn
Partners, Chicago, Illinois................................ 63
Prepared statement of.................................... 66
Livingston, Bradford, L., Partner, Seyfarth Shaw, LLP,
Chicago, Illinois.......................................... 20
Prepared statement of.................................... 22
Muir, Bernard, M., Director of Athletics, Stanford
University, Stanford, California........................... 52
Prepared statement of.................................... 54
Schwarz, Andy, Partner, OSKR, LLC, Emeryville, California.... 40
Prepared statement of.................................... 42
Starr, Hon. Ken, President and Chancellor, Baylor University,
Waco, Texas................................................ 8
Prepared statement of.................................... 10
Additional Submissions:
Chairman Kline:
Letter dated May 7, 2014 from Molly Corbett Broad,
President, American Council on Education............... 75
Mr. Miller:
Decision and Direction of Election from Peter Sun Ohr,
Regional Director, National Labor Relations Board,
Region 13.............................................. 109
College Athletes Players Association Goals............... 133
Northwestern Football Sample Schedule.................... 134
The Stanford Daily, Stanford Athletes had Access to List
of Easy Courses........................................ 78
Mr. Muir:
Courses of Interest Winter 10-11......................... 136
Letter dated May 14, 2014 from Bernard Muir, Director of
Athletics, Stanford University......................... 138
Mr. Starr: Addendum to Congressional Record dated May 22,
2014, 141
Questions submitted for the record by: Marchant, Hon. Kenny,
a Representative in Congress from the State of Texas 144
Mr. Schwarz's response to questions submitted for the record 146
BIG LABOR ON COLLEGE CAMPUSES:.
EXAMINING THE CONSEQUENCES.
OF UNIONIZING STUDENT ATHLETES
----------
Thursday, May 8, 2014
House of Representatives,
Committee on Education and the Workforce,
Washington, D.C.
----------
The committee met, pursuant to call, at 10:03 a.m., in Room
2175, Rayburn House Office Building, Hon. John Kline [chairman
of the committee] presiding.
Present: Representatives Kline, McKeon, Foxx, Roe,
Thompson, Walberg, Guthrie, DesJarlais, Rokita, Bucshon,
Brooks, Messer, Byrne, Miller, Scott, Tierney, Holt, Davis,
Bishop, Courtney, Fudge, Polis, Bonamici, and Pocan.
Staff present: Janelle Belland, Coalitions and Members
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Benjamin Hoog, Senior Legislative Assistant; Amy Raaf Jones,
Director of Education and Human Resources Policy; Marvin
Kaplan, Workforce Policy Counsel; Nancy Locke, Chief Clerk;
James Martin, Professional Staff Member; Zachary McHenry,
Senior Staff Assistant; Daniel Murner, Press Assistant; Brian
Newell, Deputy Communications Director; Krisann Pearce, General
Counsel; Jenny Prescott, Legislative Assistant; Molly
McLaughlin Salmi, Deputy Director of Workforce Policy; Mandy
Schaumburg, Education Deputy Director and Senior Counsel; Alex
Sollberger, Communications Director; Alissa Strawcutter, Deputy
Clerk; Juliane Sullivan, Staff Director; Alexa Turner,
Legislative Assistant; Tylease Alli, Minority Clerk/Intern and
Fellow Coordinator; Jody Calemine, Minority Staff Director;
Melissa Greenberg, Minority Staff Assistant; Eunice Ikene,
Minority Staff Assistant; Brian Kennedy, Minority Senior
Counsel; Julia Krahe, Minority Communications Director; Brian
Levin, Minority Press Secretary; Leticia Mederos, Minority
Director of Labor Policy; Richard Miller, Minority Senior Labor
Policy Advisor; Megan O'Reilly, Minority General Counsel; Rich
Williams, Minority Education Policy Advisor; Michael Zola,
Minority Deputy Staff Director; and Mark Zuckerman, Minority
Senior Economic Advisor.
Chairman Kline. A quorum being present, the committee will
come to order. Well, good morning. I would like to begin by
welcoming our guests and thanking our witnesses for joining us.
We appreciate the time you have taken to share your thoughts
and expertise with the committee.
College sports have become a favored pastime for millions
of Americans. Whether filling out a tournament bracket--never
works for me, by the way--to tailgating on a Saturday
afternoon, or simply cheering on an alma mater for many fans
college sports is a way to spend time with loved ones and stay
connected with old friends. Where fans are known for their
loyalty, student athletes are renowned for their passion and
talent, and look to leverage their athletic ability in pursuit
of different dreams. For some, competing at the collegiate
level is a step toward a career in professional sports.
For others, in fact for most student athletes, playing a
college sport is a ticket to an education they simply couldn't
access without an athletic scholarship. Regardless of why
student athletes play, their dreams can be turned upside down
by a sports-related injury. When that happens, institutions
must step up and provide the health care and academic support
the student needs. Most institutions are doing just that, and
standing by their athletes for the long haul. But some are not.
No student athlete injured while representing their school
on the field should be left behind because of the misplaced
priorities of a college or university. Can the NCAA and
institutions do more to protect students? Absolutely. They can
start by giving students a greater role in shaping policies
that govern college athletics. They could also work to help
ensure a sports injury doesn't end a student's academic career,
and find a responsible solution that will deliver the health
care injured players may need. While promoting change is often
difficult, student athletes deserve a determined effort to
address these concerns.
Does that mean that unionizing student athletes is the
answer? Absolutely not. When he signed the National Labor
Relations Act, President Franklin Delano Roosevelt declared,
``A better relationship between labor and management is the
high purpose of this act.'' It is hard to imagine President
Roosevelt thought the law would one day apply to the
relationship between student athletes and academic
institutions. Yet that is precisely where we are.
A regional director of the National Labor Relations Board
recently ruled football players at Northwestern University are
employees of the school for the purpose of collective
bargaining. The ballots cast in an April 25 election have been
impounded, pending review by the full board. Given the track
record of this NLRB, I suspect the board will rubber stamp the
regional director's decision, setting a dangerous precedent for
colleges and universities nationwide. In the meantime, schools,
athletic organizations, students and the public are searching
for answers to countless questions stemming from this
unprecedented ruling.
For example, what issues would a union representing college
athletes raise at the bargaining table? Would a union negotiate
over the number and length of practices? Perhaps a union would
seek to bargain over the number of games. If management and the
union are at an impasse, would players go on strike? Would
student athletes on strike attend class and have access to
financial aid? How would student athletes provide financial
support to the union? Would dues be deducted from scholarships
before being dispersed to students? Or are students expected to
pay out of pocket?
We know many student athletes struggle financially. How
will they shoulder the cost of joining a union? Speaking of
cost, where will smaller colleges and universities find the
resources to manage labor unions with student athletes? A lot
of institutions operate on thin margins, and college costs are
soaring. Are these schools ready to make some difficult
decisions, such as cutting support to other athletic programs
like lacrosse and field hockey, or even raising tuition? And
finally, how will other NLRB policies affect your higher
education system?
Are college campuses prepared for micro unions and ambushed
elections? Are administrators equipped to bargain with
competing unions representing different athletic programs? Will
students be able to make an informed decision about joining a
union in as few as 10 days, while attending class and going to
practice? These are tough questions, and they should be
discussed before students and administrators are forced to
confront a radical departure from long-standing policies. We
share the concerns of players that progress is too slow, but
forming a union is not the answer. Treating student athletes as
something they are not is not the answer.
The challenges facing student athletes should be addressed
in a way that protects the athletic and academic integrity of
higher education. The recent NLRB decision takes a
fundamentally different approach that can make it harder for
some students to access a quality education. I strongly urge
the Obama board to change course, and encourage key
stakeholders to get to work.
I look forward to today's discussion, and will now
recognize the senior Democratic member of the committee, Mr.
George Miller, for his opening remarks.
[The statement of Chairman Kline follows:]
Prepared Statement of Hon. John Kline, Chairman, Committee on Education
and the Workforce
Good morning. I'd like to begin by welcoming our guests and
thanking our witnesses for joining us. We appreciate the time you've
taken to share your thoughts and expertise with the committee.
College sports have become a favored pastime for millions of
Americans. Whether filling out a tournament bracket, tailgating on a
Saturday afternoon, or simply cheering on an alma mater, for many fans,
college sports is a way to spend time with loved ones and stay
connected with old friends.
Where fans are known for their loyalty, student athletes are
renowned for their passion and talent and look to leverage their
athletic ability in pursuit of different dreams. For some, competing at
the collegiate level is a step toward a career in professional sports.
For others - in fact, for most student athletes - playing a college
sport is a ticket to an education they simply couldn't access without
an athletic scholarship.
Regardless of why student athletes play, their dreams can be turned
upside down by a sports-related injury. When that happens, institutions
must step up and provide the health care and academic support the
student needs. Most institutions are doing just that and standing by
their athletes for the long-haul, but some are not. No student athlete
injured while representing their school on the field should be left
behind because of the misplaced priorities of a college or university.
Can the NCAA and institutions do more to protect students?
Absolutely. They could start by giving students a greater role in
shaping policies that govern college athletics. They could also work to
help ensure a sports injury doesn't end a student's academic career and
find a responsible solution that will deliver the health care injured
players may need. While promoting change is often difficult, student
athletes deserve a determined effort to address these concerns.
Does that mean unionizing student athletes is the answer?
Absolutely not. When he signed the National Labor Relations Act,
President Franklin D. Roosevelt declared, ``A better relationship
between labor and management is the high purpose of this Act.'' It's
hard to imagine President Roosevelt thought the law would one day apply
to the relationship between student athletes and academic institutions,
yet that is precisely where we are.
A regional director of the National Labor Relations Board recently
ruled football players at Northwestern University are ``employees'' of
the school for the purpose of collective bargaining. The ballots cast
in an April 25th election have been impounded pending review by the
full board. Given the track record of the Obama NLRB, I suspect the
board will rubber stamp the regional director's decision, setting a
dangerous precedent for colleges and universities nationwide. In the
meantime, schools, athletic organizations, students, and the public are
searching for answers to countless questions stemming from this
unprecedented ruling.
For example, what issues would a union representing college
athletes raise at the bargaining table? Would a union negotiate over
the number and length of practices? Perhaps the union would seek to
bargain over the number of games. If management and the union are at an
impasse, would players go on strike? Would student athletes on strike
attend class and have access to financial aid?
How would student athletes provide financial support to the union?
Would dues be deducted from scholarships before being disbursed to
students? Or are students expected to pay out of pocket? We know many
student athletes struggle financially. How will they shoulder the cost
of joining a union?
Speaking of costs, where will smaller colleges and universities
find the resources to manage labor relations with student athletes? A
lot of institutions operate on thin margins and college costs are
soaring. Are these schools ready to make some difficult decisions, such
as cutting support to other athletic programs like lacrosse and field
hockey, or even raising tuition?
And finally, how will other NLRB policies affect our higher
education system? Are college campuses prepared for micro-unions and
ambush elections? Are administrators equipped to bargain with competing
unions representing different athletic programs? Will students be able
to make an informed decision about joining a union in as few as 10
days, while attending class and going to practice?
These are tough questions that should be discussed before students
and administrators are forced to confront a radical departure from
long-standing policies. We share the concerns of players that progress
is too slow, but forming a union is not the answer; treating student
athletes as something they are not is not the answer.
The challenges facing student athletes should be addressed in a way
that protects the athletic and academic integrity of higher education.
The recent NLRB decision takes a fundamentally different approach that
could make it harder for some students to access a quality education. I
strongly urge the Obama board to change course and encourage key
stakeholders to get to work.
I look forward to today's discussion, and will now recognize the
senior Democratic member of the committee, Representative Miller, for
his opening remarks.
______
Mr. Miller. Thank you, Mr. Chairman. I am glad that we are
having a hearing to better understand what is really happening
in college athletics, to air out the very legitimate grievances
that have been raised by the Northwestern University and around
the country. Let's start by setting the stage. The nostalgic
days when student athletes really were, ``students,'' first,
and when college sports was just about learning teamwork, self-
discipline and sportsmanship while getting some exercise and
friendly competition, those days are pretty much over in high-
level athletic programs.
During the last four decades, colleges and universities,
through the NCAA, have perfected the art of monetizing athletic
play of their best football and basketball players and teams,
while steadily encroaching on the players' academic
opportunities. They have created nothing less than a big sports
empire. The empire is consumed and driven by a multibillion
dollar exclusive television, radio, multimedia deals, branding
agreements, primetime sports shows and celebrity coaches with
seven-figure salaries. Our nation's talented athletes have
become commodities within this empire.
They are units of production that are overscheduled and
overworked, left without safeguards for their health and
safety, encouraged to put their education on the back burner in
favor of success on the field. Some athletes have figured this
out, and now they are starting to ask really smart questions
about this whole arrangement. They want to know what happens to
them if they suffer a catastrophic injury on the field that
leaves them with a lifetime disability. Will they lose their
scholarship, and with it the chance of an education and a
career?
How much of their health care will they and their families
need to pay out of pocket? They are reading about new studies
in long-term effects of head injures, and they want to know if
the schools and coaches are doing all that they can to prevent
concussion and brain injury on the field. Will their health
come first when the decision is being made about whether or not
they are fit to play, or will their team's desire to win trump
the health concerns of the individual player? They are raising
questions about the adequacy of their scholarships and the
restrictions that leave them with little or no support for out
of pocket and incidental expenses they face.
Why are some of the teammates finding themselves unable to
afford enough food to eat or books for their classes while the
university makes millions from their effort? They want to know
why so many players didn't finish their academic programs. They
want to discuss a fairer transfer policy. How can policies be
changed to support the players' success in academics, not just
athletics? The National Labor Relations Board decision
regarding Northwestern University football players documents an
all-consuming, sometimes eye-popping demand of a college
football player in today's mega-profit-driven NCAA world.
At Northwestern, the daily life of a football player
revolves around practice and preparation, commonly a 40-to 50-
hour a week commitment during the fall season, with any classes
or homework squeezed on top. You can see the sample schedule
displayed here, I believe, on the screen of the Northwestern
players. Oh, it is over on--underneath the screen, excuse me.
Players are expected to report to their training room by 6:15
on Monday mornings for their medical checks. By 7 a.m., it is
various and team and position meetings, then pads and helmets
until noon.
At night, they meet with coaches to review game films. And
there are always the agility drills, conditioning,
weightlifting, workouts and playbooks to study in between. From
the beginning of the month-long August training camp, through
the grueling 12-week season, to post-season bowl play into mid-
January, winter warm-ups to February winning edge week, to
mandatory spring workouts, to high-stakes football preparation,
nonacademic obligations become the focus of these players'
lives and the obsession of their coaches. Meanwhile, players
worry about their health and safety, their financial future and
their prospects for jobs after graduation.
The big-business empire of college sports is doing very
well. Its revenues are up 32 percent in the last six years. And
many universities are hiking tuition and fees, turning to
underpaid, overstretched adjunct faculty and cutting student
services. So the NCAA and the superstar football programs are
making more and more money, and the athletes they depend on are
getting less and less. In the end, this is a classic labor
dispute. The NCAA empire is holding all the cards, making all
the rules, capturing all of the profits. The hardest-working,
most valuable components in this system, the players, are left
with little to say, little leverage, and no blocking or
tackling but themselves.
By banding together and bargaining, these athletes can win
the kinds of things union workers have demanded, and won,
across the country: a say about avoiding serious injury on the
job, medical benefits and securities if something goes wrong,
meaningful input into how they will balance their work--in this
case, football is their work--with their academic needs and
their other responsibilities, the respectful treatment and care
they so richly deserve.
I look forward to today's hearing and hearing from today's
witnesses about how we can do more to help protect and support
these hardworking student employees.
Chairman Kline. I thank the gentleman.
Pursuant to committee rule 7(c), all committee members will
be permitted to submit written statements to be included in the
permanent hearing record. Without objection, the hearing record
will remain open for 14 days to allow statements, questions for
the record, and other extraneous material referenced during the
hearing will be submitted in the official hearing record.
It is now my pleasure to introduce our distinguished panel.
And in light of my failing voice and the very, very long
resumes of our witnesses, I am going to be extraordinarily
brief.
Starting to my left, we have the Honorable Ken Starr. He is
president and chancellor of Baylor University in Waco, Texas.
Mr. Bradford Livingston is a partner in Seyfarth Shaw, LLP in
Chicago, Illinois. Mr. Andy Schwarz is a partner at OSKR LLC in
Emeryville, California. Mr. Bernard Muir is director of
athletics for Stanford University in Stanford, California. And
Mr. Patrick Eilers is managing director at Madison Dearborn
Partners in Chicago, Illinois and former Minnesota Viking.
Okay, I couldn't stop.
Before I recognize you to provide your testimony, let me
briefly remind everyone of the 5-minute lighting system. The
system is pretty straightforward. When I recognize you, you
will have five minutes to give your testimony, the light will
be green. After four minutes, it will turn yellow. I would hope
that you would be looked to wrapping up your testimony. When it
turns red, please wrap up as expeditiously as you can. I have
told witnesses before I am very loathe to gavel down a witness.
We are here to listen to you, you are here to give us the
benefit of your expertise. I am less loathe to gavel down my
colleagues when we get into our 5-minute questioning session.
But please, try to be respectful of the other witnesses, and
wrap up your testimony.
All right, let's start with the Honorable Ken Starr. Sir,
you are recognized.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Senior Democratic Member,
Committee on Education and the Workforce
Mr. Chairman, I am glad we are having a hearing to better
understand what is really happening to college athletes, and to air out
the very legitimate grievances that have been raised at Northwestern
University and around the country.
Let's start by setting the stage:
The nostalgic days where student-athletes really were ``students''
first--and where college sports were JUST about learning team work,
self-discipline, and sportsmanship while getting some exercise and
friendly competition--are pretty much over for high-level athletic
programs.
During the last four decades, colleges and universities--through
the NCAA--have perfected the art of monetizing the athletic play of
their best football and basketball players and teams--while steadily
encroaching on the players' academic opportunities.
They have created nothing less than a big business sports empire.
That empire is consumed and driven by multi-billion dollar
exclusive television, radio, and multimedia deals; branding agreements;
prime- time sports shows; and celebrity coaches with seven-figure
salaries.
Our nation's talented college athletes have become commodities
within this empire.
They are units of production that are over-scheduled and over-
worked, left without safeguards for their health and safety, and
encouraged to put their education on a backburner in favor of their
success on the field.
Some athletes have figured this out, and now they are starting to
ask really smart questions about this whole arrangement.
They want to know what happens to them if they suffer a
catastrophic injury on the field that leaves them with a lifetime
disability.
Will they lose their scholarship--and with it their chance for an
education and a career?
How much of their health care will they and their families need to
pay for out of pocket? They are reading about the new studies on the
long-term effects of head injuries.
And they want to know if the schools and coaches are doing all they
can to prevent concussions and brain injury on the field.
Will their health come first when a decision is being made about
whether or not they're fit to play? Or will the team's desire to win a
game trump the health concerns of an individual player?
They are raising questions about the adequacy of their scholarships
and the restrictions that leave them with too little support for the
out-of-pocket and incidental expenses they face.
Why are some of their teammates finding themselves unable to afford
enough food to eat or books for their classes, while their university
makes millions from their efforts?
They want know why so many players don't finish their academic
programs, and they want to discuss fairer transfer policies.
How can policies be changed to support players' success in
academics, not just athletics?
The NLRB's decision regarding Northwestern University football
players documents the all-consuming, sometimes eye-opening, demands of
a college football player in today's mega-profit-driven NCAA world.
At Northwestern, the daily life of a football player revolves
around practice and preparations-- commonly a 40- to 50-hour-a-week
commitment during the fall season--with any classes or homework
squeezed on top.
You can see a sample schedule displayed here.
Players are expected to report to the training room by 6:15 on
Monday mornings for their medical checks. By 7:50 a.m., it's various
team and position meetings, then pads and helmets until noon.
At night they meet with coaches to review game film.
And there are always agility drills, conditioning and weight-
lifting workouts, and playbooks to study in between.
From the beginning of the month-long August training camp; through
the grueling 12-week season; to post-season bowl play; into mid-January
winter warm-ups; to mid-February ``Winning Edge'' week; to mandatory
spring workouts; high-stakes football preparation, not academic
obligations, becomes the focus of these players' lives and the
obsession of their coaches.
Meanwhile, players worry about their health and safety, their
financial future, and their prospects for a job after graduation.
The big business empire of college sports is doing very well. Its
revenues are up by 32 percent over just the last six years.
And many universities are hiking tuitions and fees; turning to
underpaid, overstretched adjunct faculty; and cutting student services.
So the NCAA and superstar football programs are making more and
more money, and the athletes they depend on are getting less and less.
In the end, this is a classic labor dispute.
The NCAA empire is holding all the cards, making all the rules, and
capturing all the profits.
The hardest-working, most valuable components of this system--the
players--are left with little say or leverage, with no one blocking or
tackling but themselves.
By banding together and bargaining, these athletes can win the
kinds of things union workers have demanded and won across the country:
* a say about avoiding serious injury on the job,
* medical benefits and security if something does go wrong,
* meaningful input into how they balance their work--in this case
football--with their academic needs and other responsibilities, and
* the respectful treatment and care they so richly deserve.
I look forward to hearing from today's witnesses about how we can
do more to help, protect, and support these hard- working student
employees.
______
STATEMENT OF HON. KEN STARR, PRESIDENT AND CHANCELLOR, BAYLOR
UNIVERSITY, WACO, TEXAS
Judge Starr. Thank you, Mr. Chairman. It is an honor to be
here and to discuss this very important issue for private
higher education. As the chair kindly recognized, I serve as
president and chancellor of Baylor University. I have served as
president and CEO of Baylor University since June of 2010.
Baylor University is located in Waco, Texas. It is a private
Christian university. It is ranked as a high research,
comprehensive university, and it is a vibrant community home to
over 15,000 students, including over 600 student athletes.
Baylor is a founding member of the Big 12 Conference,
established in 1994. We sponsor 19 varsity teams. We are very
blessed at Baylor to have student athletes who succeed both in
the classroom and on the playing field. Over the past three
years, Baylor University has been the most successful Division
1 program in combined winning percentages of football and men's
and women's basketball. But these accomplishments do not count,
ultimately, in terms of what we emphasize at Baylor.
As commencement approaches next week on our campus, we are
celebrating our academic accomplishments. In fact, we gathered
together on Monday evening at Baylor's Ferrell Center to do
exactly that; to honor our student athletes' performance in the
classroom. During the prior academic year, Mr. Chairman, 86
percent of senior student athletes at Baylor received their
undergraduate degrees, and many have gone on to pursue advanced
degrees. This past fall semester--the grades are not in for the
spring--our student athletes achieved a cumulative GPA of 3.27.
That is an all-time high.
And 347 of our student athletes were named to the Big 12
commissioners' honor roll. So these are remarkable times for
Baylor and its athletic program. Yet the reality is, is that
even in these best of times college athletics, including at
Baylor, is not a profit-generating activity. It does not
generate profits for Baylor, nor for the vast majority of
institutions of higher education. The NLRB regional director's
recent decision in the Northwestern University case has
characterized our student athletes as employees. This is an
unprecedented ruling, as the chairman noted. In our view, it is
misguided.
The term ``student athletes'' is real on our campus. We
would invite members to come to our campus and see for
themselves. At bottom, it is a relationship which provides a
college education and even beyond. That at Baylor, student
athletes are first and foremost students, and they are expected
to be and required to be. We are far removed from a
professional sports franchise. We are dedicated to each and
every student's welfare, including our student athletes.
Now at Baylor, and across the nation, student athletes
benefit from a wide array of services that are specifically
designed to maximize their potential as students, and then to
prepare the student athletes for their journeys in life after
college. These services and programs contribute significantly
to their ultimate academic success. They include academic
advising, degree planning, career counseling. Many
institutions, including Baylor, provide very high-quality
academic support, such as tutoring service, computer labs, and
study lounges. We have study hall.
Student athletes also receive specific financial benefits,
which help them progress toward degree completion. And these
traditional benefits are very familiar: tuition, room, board,
fees, books, and other related educational expenses.
Now, what is the purpose? The purpose in offering financial
assistance is to encourage our student athletes to carry on,
and to complete, their academic work. And the vast majority do.
Now, the NLRB has expressed a view that the legal issue of
employee status is ultimately a matter of congressional intent,
and we agree with that.
In instance however, the regional director has
mechanically, and we believe erroneously, applied a rigidly
wooden test drawn from the common law, notwithstanding, as the
chairman suggested, the absence of any congressional intent to
include college athletics as an employment venue.
Now, the decision, by its terms, applies only to private
institutions. But it does create a dichotomy. For example, the
decision rightly notes that Northwestern University is
nonsectarian. But the NLRB has been struggling in various
dimensions with religious liberty limitations on its own
jurisdiction.
So we should reasonably expect some private, religiously-
affiliated universities to challenge the board's authority to
be regulating institutional missions expressly grounded in a
religious world view.
The second and more structurally significant disparity is
the decision's implicit exclusion of state institutions. In
intercollegiate athletics, private universities compete with
state institutions and this will likely create many
discrepancies among the nation's universities.
Thank you, Mr. Chairman.
[The statement of Judge Starr follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Kline. Thank you.
Mr. Livingston, you are recognized.
STATEMENT OF MR. BRADFORD L. LIVINGSTON, PARTNER, SEYFARTH
SHAW, LLP, CHICAGO, ILLINOIS
Mr. Livingston. Good morning, Mr. Chairman and members of
the committee. As the Supreme Court has noted, principles
developed for the industrial setting cannot be imposed blindly
in the academic world. While I fully support the NLRA's
purposes in allowing employees the freedom to choose whether or
not to form a labor union and bargain collectively, the NLRB
itself has recognized the problem of attempting to force the
student-university relationship into the traditional employer-
employee framework. That problem is apparent here.
A university's primary mission is to educate its students,
including student athletes. Student athletes are neither hired
by a college, nor providing it services for compensation.
Athletes are students who are participating in its programs
with a dual role as both student and athlete. Treating these
participants as NLRA-covered employees changes them from
students who are student athletes to professional athletes who
are also students. But even if student athletes could be
considered employees--and the term is undefined in the NLRA--
employee status conflicts with the remaining principles
contained in that act.
Consistent with labor agreements from other industries, a
college athletes' union could negotiate over the scheduling and
duration of practice time, distribution of playing time,
scholarship allocation by dollar value and player position;
whether non-bargaining unit players--in this case, walk-ons--
have the right to perform bargaining unit work by playing in
games in the broad range of statutory wages, hours, and other
terms and conditions of employment described in NLRB precedent.
They could likewise negotiate over academic standards,
including minimum grade point averages, class attendance
requirements, the number and form of examinations or papers in
any course.
Grievance procedures could challenge a professor's grade,
and even potentially graduation requirements. And unlike with
statutory requirements, a college cannot refuse to bargain over
changes to its own, its conference, or NCAA rules. Eventual
differences in the conditions under which collegiate teams
practice and compete will guarantee competitive imbalances. If
college football players are employees, the NLRA makes it clear
that they may organize in an appropriate bargaining unit, not
the most appropriate bargaining unit. Because the petition for
a unit will be considered appropriate unless a larger group now
shares an overwhelming community of interest with that group, a
college would have difficulty proving that the remainder of the
football team shares an overwhelming community of interest if a
labor union seeks to represent just the team's offense, perhaps
just its quarterbacks.
Different potential union rules among discrete groups
within one team are modest, however, compared to what will
happen when college teams compete under different work rules
negotiated with their respective unions. In professional
sports, every team is a private employer under the NLRA's
jurisdiction that can therefore be covered under a single
collective bargaining agreement. The major professional sports
leagues have their own multi-employer collective bargaining
agreements that cover the league and all of its teams. Those
agreements provide a relatively level playing field, whether
with salary caps, minimum wage progressions, free agency, drug
testing protocols, and even revenue sharing.
Unlike professional leagues, the same will not be true in
college football. Because its jurisdiction is limited to this,
to private employers, the NLRB is creating rules for student
athletes at only 17 schools, fewer than 15 percent of the
participants. And it is almost certain that the NLRA's regime
for recognizing and bargaining with unions will not apply to
the remaining 85 percent that are public universities governed
by state laws and beyond the NLRB's jurisdiction. Some states
expressly regulate public sector employee collective
bargaining, others often either limiting it to certain subjects
or types of employees.
Other states have no laws, or prohibit public sector
bargaining entirely. A bill before Ohio's house of
representatives clarifies that student athletes at its public
colleges and universities are not employees. Conversely, too,
Connecticut legislators indicate that they will introduce
legislation stating that their public college athletes are, in
fact, employees. Without a unified collective bargaining
agreement like the NBA or NFL, every college team must fend for
itself with its employee athletes. Athletic departments that
can afford it may be able to hire the best players.
Institutions whose fortunes and job offers are not as robust
may attract lesser talent.
The resulting patchwork of conflicting statuses as
employees or not, bargaining rights, labor contracts, and
student athlete rules will create competitive imbalances. The
National Labor Relations Act is not an appropriate vehicle to
address student athletes' concerns or disputes with their
colleges and universities, athletic conferences, or the NCAA.
For these and the other reasons contained in my written
testimony, treating these student athletes as employees covered
by the NLRA is simply unworkable.
Mr. Chairman and members of the committee, I thank you for
the opportunity to share my thoughts with you today.
[The statement of Mr. Livingston follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Kline. Thank you.
Mr. Schwarz, you are recognized.
STATEMENT OF MR. ANDY SCHWARZ, PARTNER, OSKR, LLC, EMERYVILLE,
CALIFORNIA
Mr. Schwarz. Chairman Kline, Ranking Member Miller, members
of the committee, thank you for allowing me to testify on these
issues related to college football. My name is Andy Schwarz, I
am an economist who specializes in antitrust and the economics
of college sports. I am a partner with the firm OSKR, but I am
testifying today solely on my own behalf.
As the members of the committee know, the NLRB authorized
an election for Northwestern football athletes. And so to
start, I want to provide a few facts from those proceedings.
Scholarship football athletes at Northwestern devote 40 to 60
hours per week during a 5-month season and 15 to 25 hours per
week the rest of the year. They receive no academic credit,
they are not supervised by faculty, and football is not a
direct part of the curriculum of their undergraduate majors.
I understand this panel is focused on unintended
consequences of unionizing college football. So I want to
explain that the biggest threat to college sports from
collective action is the current price fixing cartel called the
NCAA. By price fixing, I am focused on how 351 Division 1
schools, including my own beloved Stanford, stifle healthy
economic competition through collusion to impose limits on all
forms of athlete compensation. College football is an
enormously popular consumer product. It generates passion from
fans and billions in revenues from schools, for broadcast
television networks, for merchandisers and apparel companies.
FBS football is a professional sports industry. FBS
football alone reported 3.2 billion in revenue in the most
recent federal filings. D1 basketball added another 1.4
billion. Individual athletic departments regularly generate
more revenue than almost all NHL and NBA teams. Former NCAA
president, Miles Brand, explained that maximizing revenue was
the only responsible path for college sports. That is exactly
how a vibrant business should behave. But there is an economic
dark side to college sports that comes from collective action,
which is price fixing.
The NLRA and the antitrust laws work together to ensure
that when sports leagues and athletes form partnerships
negotiations are fair. And either choice is valid; in a
unionized, collective bargaining path, or a more free market
approach governed by the antitrust laws. Given the one-sided
power imposed by collusion, it is not surprising that players
have turned to labor law and to unionization for a modicum of
countervailing bargaining power. Other American sports involve
a league, negotiating with a union, to achieve a competitive
outcome. Leagues generally encourage unionization.
In 2011, the NFL players sought to end their union. But the
NFL went to court to demand they remain a union, against the
players' wishes. As an economist I focus on the athletes' free
market value, which is high. But as a union, CAPA is focused on
very different things. They are focused on enhancing
educational and safety component of the bargain, better medical
coverage, reducing head trauma, improving graduation rates and
establishing educational trust funds to ensure athletes can
finish their degrees.
Because of time limits I will summarize my points and leave
the rest for the question period. Because most athletes do not
go on to work in the NFL, NCAA collusion effectively denies 95
percent or more of college athletes of their four best sports
earning years of their entire career. For some, those may be
their four best earning years. Money that would go to male
athletes is, instead, funneled to coaches and into elaborate
recruiting palaces. College football coaches can make as much
as $7 million a year. Shunting money to coaches also deprives
women athletes of Title IX matching funds.
Collusion shifts the burden from a private school like
Northwestern to taxpayer-funded Pell grants, sometimes even
food stamps, or by forcing students to leave school to support
their families. The current tax code exempts from taxation the
tuition portion of athletic scholarships as well as tuition
remission paid to university employees as part of a broader
compensation package. Nothing in the NLRB ruling should change
that and, if it did, Congress itself has the power to make sure
that doesn't happen.
Finally, the NCAA limits consumer choice with a centrally-
planned, one-size-fits-all product offering. I also want to say
that the term ``student athletes'' itself was created to dodge
legal responsibilities for athletes' safety and to avoid
economic competition. But the resources from new TV deals alone
are sufficient for an orderly transition from a command and
control economy to a market-based one. Americans have a legal
right to economic markets free of collusion. Until that right
is respected for college athletes of course they will seek
collective alternatives.
An athlete who has bargained, individually or collectively,
to ensure he is well fed, given real access to a full range of
majors and programs at a school, and provided with health and
safety rules that lower the risk of serious head trauma or
lifelong disability is going to be in a better position to
benefit from a true education than a hungry or concussed
athlete forced into a dead end major.
Thank you for your time.
[The statement of Mr. Schwarz follows:]
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Chairman Kline. Thank you.
Mr. Muir, please?
STATEMENT OF MR. BERNARD M. MUIR, DIRECTOR OF ATHLETICS,
STANFORD UNIVERSITY, STANFORD, CALIFORNIA
Mr. Muir. Chairman Kline, Ranking Member Miller and members
of the committee, I am pleased to be here to provide some
comments about the experiences of student athletes at Stanford
University. My comments are specific to Stanford and are not
focused on the details of the case currently before the
National Labor Relations Board. But I hope to help illuminate
some of the larger issues you are addressing today.
Stanford has 7,000 undergraduate students and nearly 9,000
graduate students. And the university is recognized
internationally for its academic quality. We offer 36 varsity
sports, 20 for women and 16 for men. About 900 students
participate in intercollegiate sports; 53 percent of them men
and 47 percent of them women. Stanford has won the Directors
Cup, which honors the most successful program in NCAA Division
1 sports for the last 19 years. We are very proud of the
athletic achievements of our student athletes.
But what I want to emphasize in my testify this morning is
that, in athletics, we never lose sight of the university's
larger mission. Stanford is a university first, and its
academic mission comes first. We believe the most important
thing for our student athletes walk out the door with, when
they leave Stanford, is a Stanford degree. Ninety-seven percent
of our student athletes achieve this goal, including 93 percent
of our football student athletes. The athletic experience is
not pursued at the expense of the academic experience or
separate and apart from it. Each enhances the other.
One out of every eight undergraduate students at Stanford
is a student athlete. So this is not a separate group having a
separate experience from the rest of the student body. They are
in the same classes, the same laboratories, the same
undergraduate housing. They have the same exam schedules, even
if it means to take a proctored examination on the road, and
the same degree completion requirements as other students. The
rigor of the academic enterprise begins with the admissions
process. Stanford does not admit anyone it is not confident can
succeed academically at the university.
Stanford reviews each applicant for undergraduate admission
holistically, looking at the academic excellence, intellectual
vitality and the personal context each brings to the table.
This evaluation occurs in the admissions office independent of
the athletic department. Our student athletes demonstrate how
importantly they view a Stanford education by taking all steps
they need to complete it. As two brief examples, Andrew Luck of
the Indianapolis Colts and pitcher Mark Appel of the Houston
Astros organization both bypassed the opportunity to leave
Stanford with a year of eligibility left and enter the
professional sports world.
Instead, they remained at Stanford to complete their
degree. Even among the few Stanford athletes, student athletes,
who do not complete a degree before becoming professional
athletes, many do come back to finish later. The overwhelming
majority of our student athletes will not go on to earn a
living in professional sports, but whatever path they take
their Stanford experience will provide them with outstanding
preparation for success in the world. The academic grounding
they receive is solid, and the athletic experience builds on it
by teaching leadership, strategy, team dynamics, problem-
solving, and other capacities critical to success. I discuss
all of these issues more extensively in my written testimony.
I want to address a related question about how revenue from
athletics is used. At Stanford, while football and men's
basketball generate net revenue through ticket sales and TV
contracts, the vast majority of our 36 sports do not. All the
revenue that the university receives from these two sports is
used to support the overall athletic program, including the 87
percent of our student athletes who participate in those other
34 sports. We use these revenues to support athletic
opportunities for the broad cross-section of our students, both
men and women. Providing these opportunities is very important
to us.
Let me close by discussing how we address the needs and
concerns of student athletes. We work very hard to ensure that
both the academic and athletic experiences of our student
athletes are excellent and properly supported. Soliciting
honest feedback from our students is critical to that
objective, and we have a variety of avenues for doing so. Many
of the issues that have been identified by the union seeking to
represent student athletes are issues we are already addressing
at Stanford. Although there are areas where our actions are
governed by NCAA regulations, we are always open to making
improvements that are within our purview, and to working with
the NCAA to improve its rules on issues such as minimum
academic progress for student athletes and scholarships that
include fair stipends for student athletes' expenses.
I hope the strengths and benefits of programs such as ours
will be considered, as the national discussion of these issues
continues. I also recognize that there is a variation on these
issues from school to school. And that while I have been
speaking today about Stanford, there may well be differences at
other institutions. Stanford stands ready to talk with and work
with others who are likewise interested in continually
improving the experience of student athletes across the
country.
Thank you.
[The statement of Mr. Muir follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Kline. Thank you.
Mr. Eilers?
STATEMENT OF MR. PATRICK C. EILERS, MANAGING DIRECTOR, MADISON
DEARBORN PARTNERS, CHICAGO, ILLINOIS
Mr. Eilers. Mr. Chairman, Ranking Member Miller, and
members of the committee, thank you for the opportunity to
appear before you today and present my views on the ongoing
quest to improve the environment for student athletes on
college campuses. Before I do so, I would like to make it clear
that my comments today are strictly my own. Although I was a
student athlete at the University of Notre Dame and later
obtained a master's degree from the Kellogg Graduate School of
Management at Northwestern University, I do not speak for nor
do I represent these institutions. I speak only for myself.
I graduated from the University of Notre Dame in 1989 with
a bachelor of science degree in biology, while also pursuing a
second undergraduate degree in mechanical engineering, which I
received a year later. While I was a student at Notre Dame, I
played four years of varsity football and also played on the
varsity baseball team. I had transferred from Yale University
at the beginning of my sophomore year and had a fifth year of
academic eligibility, affording me the opportunity to complete
my second degree. I transferred to Notre Dame to pursue
excellence in the classroom and on the football field.
I felt Notre Dame offered me the opportunity to do well in
both. While it wasn't easy, it certainly was achievable. The
infrastructure was, and remains, in place to assist student
athletes to achieve at Notre Dame. I have a daughter who is
currently a collegiate student athlete there, and I have
witnessed even further improvements in the program such as
mandatory study hall for all incoming freshman athletes. I am
here today as a former collegiate student athlete, and I am not
an attorney versed in labor law so I will leave the legal
arguments to the experts to my right.
The impetus for today's panel is the NLRB regional
director's ruling that college athletes are deemed employees
which would enable them to potentially unionize under the
National Labor Relations Act. The union pursuit is a means to
an end, a vehicle if you will, to implement improvements to our
collegiate athletic system. I believe there is little debate
about necessary logical improvements, which I will describe. I
believe the debate today should, instead, be focused on seeking
the most effective vehicle to cause the implementation of these
improvements.
The crux of the problem is that the student athletes should
be students first and foremost. I am concerned that calling
student athletes employees will make the system more of a
business than it already is. In my mind, we need to gravitate
collegiate athletics towards a student-centric model, not the
other way around. I also worry about the unintended consequence
of being deemed an employee and what unionization could bring
to college athletics. That said, as a former student athlete I
support many of the goals of the National College Players
Association and the College Athletes Players Association that
the ranking member described in front. I favor mandated four-
year scholarships, health insurance benefits, and stipends. I
will address transfer eligibility briefly.
Four-year scholarship: as a student athlete you should be
able to maintain an athletic scholarship for at least four, and
debatable five, years from the date you entered college,
assuming you maintain the school's academic and disciplinary
standards, with the goal of obtaining an undergraduate degree.
The obligation should be maintained regardless of your
productivity on the athletic field, and even if you sustain a
permanent injury. The sad reality at some colleges is, if the
student athlete is not performing on their field their athletic
scholarship may not be renewed year to year. This incents
student athletes to only focus on scholarship renewable at all
costs, rather than striking the right balance of performance in
the classroom and on the field of play.
Health and insurance benefits: after sustaining a sports-
related injury, a student athlete's scholarship should neither
be reduced nor eliminated, and there should be guaranteed
coverage for medical expenses for current and former players.
Student athletes that sustain permanent injuries should be
afforded health care insurance benefits for life. I also hasten
to around that all college athletic programs should enhance
their efforts to minimize the risk of sports-related traumatic
brain injuries.
Stipend: student athletes should be afforded stipends so
they can handle out of pocket expenses associated with
attending college, at the very least on a needs-based
assessment.
Transfer: if four-year scholarships are mandated, not at
the option of each college, then I am okay with current
transfer restrictions. I was a product of these transfer
restrictions. I was ineligible my sophomore year at Notre Dame.
However, if honoring four-year scholarships is not required,
then the one-time, no-penalty transfer option should be
afforded to all student athletes, not just select sports.
So in conclusion, these initiatives are, in my mind,
obvious and necessary improvements. The first three have
monetary implications which I recognize make them more
difficult to implement for athletic programs that already
operate in the red. However, I believe there is clearly plenty
of money in the system for necessary improvements that have
been highlighted.
The National Collegiate Athletic Association is,
``dedicated to safeguarding the well-being of student athletes
and equipping them with the skills to succeed on the playing
field and in the classroom, and throughout life.''
If this mission statement is true, why then haven't these
goals already been implemented? I believe this problem exists
simply because of the fact that the NCAA is a membership-driven
organization, ``made up of colleges and universities, but also
conferences and affiliated groups.'' Perhaps because of this
charter, it appears to me that the NCAA may not have been able
to get consensus from its diverse membership on these issues. I
don't have a solution to this problem, but I question the need
to unionize to effectuate the implementation of these
initiatives.
One final note. It is difficult to maintain that we truly
have a student athlete system, given the relatively low
graduation rates for student athletes at many institutions
across the country. This is not an acceptable outcome, and I
don't see how classifying these student athletes as employees
is going to improve the situation.
So finally, I was a student athlete at Notre Dame, period.
I was not an employee of the university, nor did I want to be
one. Conversely, I played six years of professional football,
including three here for the Redskins where I was an employee
and I wanted to be one.
Thank you. I would be pleased to answer any questions you
have.
[The statement of Mr. Eilers follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Kline. Thank you. Thank all of the witnesses. A
panel of true experts.
Because you are on a roll there, Mr. Eilers, I am going to
start with you. Guy from St. Paul that goes on to do all these
things, we are very proud of you. I know that when you were at
Notre Dame I think you were part of a national championship
team, and I am just deeply disappointed you couldn't help the
Vikings be a Super Bowl team.
You mention that your daughter is playing lacrosse at Notre
Dame. And I am--with her--watching her experience and your
experience, I am wondering if you were ever discouraged at
Notre Dame from taking a class or pursuing a major because you
were a student athlete.
Mr. Eilers. I was not, and I think, further, they
encouraged us to pursue our academic passions, Mr. Chairman.
Chairman Kline. And you wisely moved on from a bachelor's
degree in biology, which I also had and found useless, so--I
think probably most of us on this panel, I know I can't speak
for everybody on both sides of the aisle, but you mentioned a
lot of issues that could be and should be addressed. Injuries,
for example you had a sort of a list of things that ought to be
looked at. And your conclusion was that is something that the
universities, Notre Dame and all of them, including Baylor and
Stanford, ought to be addressing. And that being a member of a
union, a student athletes' being a member of a union, being
employees, wouldn't help that. Is that--am I oversimplifying
your position there?
Mr. Eilers. I don't think you are oversimplifying. I would
say that I think Judge Starr's Baylor, Bernard's Stanford,
like, you know, Notre Dame, it is an option to provide for your
scholarships. Each of our institutions provide that for our
student athletes. That is not universally adopted across the
country. And I think for a student athlete not to graduate from
a university with a degree in hand is a total disservice.
Chairman Kline. Thank you. And I think, Judge Starr, you
mentioned something like 86 percent. Could you take about your
graduation rate for your student athletes again, very quickly?
Judge Starr. Yes. This last year, academic year, 82 percent
did, in fact, graduate. A number did, in fact, as did Pat, go
on to pursue degrees, as well; advanced degrees, graduate
degrees. And here is the key point. It is individual choice.
What is the culture? That is the responsibility of the
university. Does the university create a culture that
encourages the student to do the best that he or she can? There
are obviously important issues to be addressed. We completely
agree with that, and we are part of a conversation that is
nationwide, with respect to what can we do better.
We know there are things that can, in fact, be improved.
Especially the full cost of attendance. Completely agree with
that. But the real question, I think, with respect to the NLRB,
Mr. Chairman, is are we going to, in fact, use the National
Labor Relations Act as a tool for negotiating improvements. And
it seems to be exactly the wrong way to go. For starters, if I
may just make one additional point, the collective bargaining
unit that was recognized by the regional director doesn't
include the entire football team.
So if you are a walk-on, if you are one of the 35 members
of the football team at Northwestern, the representative, if
the union is, in fact, elected, is not going to be representing
you. You are going to be outside the unit. Quite apart, then,
from the non-revenue sports. And that is a fundamental issue.
We are treating all of our student athletes the same, and we
want to, in fact, encourage this culture that we want you to go
to school, we want you to earn your degree, and we want to help
prepare you for your journey in life.
Chairman Kline. Thank you.
And Mr. Muir, back to Stanford. In your testimony you
talked about how football and basketball were moneymakers, and
that money went to the other sports. Could you just remind us
again of how that distribution goes?
Mr. Muir. Yes. The resources that we derive--
Chairman Kline. Your microphone.
Mr. Muir.--from our TV, our media rights, goes back into
supporting 36 sports, in our case, which is one of the larger
offerings around the country. But it is to enhance that
experience overall for all of our student athletes, the 900
that we support. And so we think that is very important.
Chairman Kline. Okay, thank you.
Mr. Miller?
Mr. Miller. Thank you, Mr. Chairman.
Mr. Starr, I assume you weren't calling for a larger
bargaining unit.
[Laughter.]
Mr. Starr. No, I was not. But it does raise, Mr. Miller,
the issue.
Mr. Miller. I appreciate that. I just want to make it
clear.
Mr. Starr. Yes, the continuity of interest, the community
of interest.
Mr. Miller. Mr. Eilers, I want to thank you very much for
your testimony. Because you testified in a very straightforward
manner about the issues that the students at Northwestern were
raising that are endemic, I believe, to the football programs
around the country. And that really was, as you pointed out,
the security of their scholarship--four-year scholarship as
opposed to year-to-year that can be used as a weapon against
the student or performance or to get out of--to add somebody
else to the squad. The health and insurance benefits, the
concern when you are injured or you have suffered disability as
a result of that, or you lose your athletic ability and you
lose your scholarship.
These things start to accumulate on some students. The
stipend issue that you have raised and the transfer issue.
These are the issues that these students felt necessary to form
a union around because they weren't getting satisfaction. And I
suspect you would find that if you traveled to most of the
college campuses that have sports programs, that the students
feel that they are just--they are caught up in a cog, and they
are only there for four years, five years, for whatever period
of time. And they are not being addressed.
I find it interesting that other witnesses held their
testimony to that notion, and that is their belief that this is
a student athlete. These--your student athletes at Northwestern
said what about the athletic side of it? What about where we
spend 50 hours a week? What is this imposition on us, and what
security do we have? And apparently that can never quite get
addressed.
And, Mr. Schwarz, that brings me to you. If you read Mr.
Livingston's testimony, he can tell you why this labyrinth,
this integral work between conferences and the NCAA and the
colleges, and maybe even the media, would not be a shield
against issues raised by this bargaining unit. They could
travel all over and even has them going into the academic side.
But that same network is used as a weapon against the athletes.
Mr. Schwarz. That is right.
Mr. Miller. That same network is used as a weapon when they
want to talk about is our stipend fair, are our policies--
because they don't have any voice in that at all. And then,
well, the school is happy giving you a four-year--but that is
not every school in the league, maybe not even in the PAC-12, I
don't know. But, you know, we have to check with the
conference. And the conference, well, you know, we are bound by
the rules. And also remember, today, what conference you get
in--I mean, conferences are like commodities. They are moving
them around to generate TV revenues.
It is no longer allegiance to the fans or the old
rivalries. It is about what are the revenues that will be
generated on--you know, mid-week, weekend playoffs. So you want
to explain a little bit how this is a--if you are a handful of
student in the Northwestern program, how you are going to be
heard and how you are going to get results during your career?
Mr. Schwarz. Sure. If I could just address a couple things.
One of the statements I heard here is that Baylor treats all of
its student athletes the same. That is not true. There is a cap
on how many students can receive scholarships, and walk-ons are
prohibited from receiving scholarships if they exceed that. So
there is already, in some sense, a caste system that is
created--that is a term that Mr. Muir has used to describe
paying athletes--that distinguishes between scholarship
athletes and other athletes who likely would get a scholarship
if the school were actually allowed to exercise individual
choice. But instead, there is a collusive cap that prevents it.
Directly to your point, the way I like to think about the
claim that schools are poor in their athletic departments is
that it is similar to, say, like a Wall Street banker who
brings in a million dollars of salary but maybe he has been
divorced twice and so he has alimony payments. Maybe he has
kids in college, maybe he has a couple mortgages. And so once
he is done paying for all those things there is not a lot of
money left and Wall Street banking doesn't pay that well.
Mr. Miller. Well, I think that is sort of the point that
the Knight Commission found in 2010. There is not enough money
to provide those scholarships, there is not enough money to
help the other sports. But as they pointed out, the escalating
coaches' salaries are creating an unsustainable growth of
athletic expenses.
Mr. Schwarz. That is right. Once you spend--
Mr. Miller. And you can bury $7 million into a coach's
salary or $3 million into coaches' salaries. And I recognize
that is the exception. But more and more people are joining
that fraternity. But then you plead, poor mouth, that you can't
quite take care of your athletic obligations, campus-wide.
And so I think that we see here is that the NCAA has
constructed a very, very interesting and overwhelming network
to be used against these kinds of questions being raised. Even
a commission as prominent as the Knight Commission that
examined this impact of, and the relationship, if you will, of
student athletes. And that is why these students chose to
become employees. Because they recognize the situation that
they were in. Classical employer-employee relationship.
Thank you.
Chairman Kline. The gentleman's time has expired.
I ask unanimous consent to submit for the record a letter
from the American Council on Education, which warns that
treating student athletes as employees, ``would have a range of
negative and troubling consequences.''
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Miller. I ask unanimous consent to submit for the
record an article from the Stanford Daily, ``Student Athletes
Had Access to Easy Courses.''
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Kline. Without objection, both will be entered in
the record. All right.
Dr. Foxx?
Ms. Foxx. Thank you, Mr. Chairman. And I want to thank all
of our witnesses here today. You have provided some fascinating
information to us, and I am grateful to you. As someone who has
spent a lot of time in education and higher education, I have
dealt with student athletes and students who weren't athletes.
So I appreciate the information.
Judge Starr, I understand Baylor's priority is education.
In fact, all of you have talked about that. Would you describe
how Baylor's athletic programs work with the academic programs
to ensure student athletes can prioritize their studies while
also meeting their commitments to the team?
Judge Starr. One of the keys, Dr. Foxx, is the planning
process that goes into developing the major planning, then the
schedule. And the student athletes do have priority in terms of
registration, so we do not have a crowding out kind of question
at all. And so throughout the academic year there is a careful
monitoring of that student's progress. And if there are issues
that are being identified, then those issues are going to be
addressed.
And I think that is why we have seen a steady increase in
recent years, even before my watch, but it is a point of
personal emphasis on my watch, that we want the student
athletes to have that entire reservoir of support. And that is
why the GPA, cumulative GPA average, is 3.27. It is a very
labor-intensive and very student athlete-specifically focused
activity.
Ms. Foxx. I am assuming you have study halls?
Judge Starr. They are--as elsewhere, mandatory for first-
years, for freshmen. And then there are abundant study
facilities available. They are very conveniently located, as
part of our Simpson Highers academic and athletic center.
Ms. Foxx. Well, let me come back to the regional director's
opinion. He includes a list of restrictions placed on the
athletes. He says that they have to obtain permission from the
coaches before applying for outside employment, posting items
on the Internet, and speaking to the media. They are also
prohibited from using alcohol and drugs and engaging in
gambling. Judge, this may sound like a silly question. But
please tell me why you place these restrictions on student
athletes.
Judge Starr. Well, it is, in fact, to create a team
culture. And also to ensure, as best we can, appropriate
behavior. Dr. Foxx, when the student athlete arrives he or she
is presented with a student athletic handbook. And the earliest
pages say here is the kind of behavior that is forbidden
because it reflects poorly on the university, it reflects
poorly on the team and, frankly, it is destructive of the
culture of the team. So yes, there a number of prohibitions,
but they are all grounded in human experience. These are things
that the student athlete should not be doing.
Ms. Foxx. Some of those things are things no student should
be doing, correct?
Judge Starr. That is correct. In fact, one of the things--
when you go through the ``thou shall not'' list it is, in fact,
very, very comparable to that of any other student. There are
obviously some athletics-specific activity. But it is, in fact,
a community of rules that we are in community together and
these are the rules that bind us all.
Ms. Foxx. Right. I would like to ask you this question. And
then if Mr. Muir has an opportunity to respond to it also I
would appreciate it. We know that the decision made by the NLRB
gentleman has implications beyond the NLRA. It has implications
for Title IX of the education amendments of 1972, Workers'
Compensation laws, tax law, Fair Labor Standards Act--could all
be implicated. Would you tell us your thoughts on the possible
implication of these laws for Baylor, and then, Mr. Muir, for
Stanford?
Judge Starr. I think they are very serious issues with
respect to Title IX in particular. If the football scholarship
student athletes are all employees then, in fact, that is going
to create a very serious issue in terms of imbalance with
respect to what Title IX requires.
There are going to be a host of other issues, as well.
Injuries are important, health is very important. We are very
sensitive to that. And therefore, the question will be
triggered is--does OSHA have jurisdiction in this context, as
well. So I think it is going to raise a hornet's nest of
issues.
Mr. Muir. Yes, I believe if we go down that path that first
and foremost, you know, our students are students first. And we
want to ensure that. Many of the issues that the Northwestern
student athletes raise are issues that we are already covering
at Stanford. I think if we go down the path where--eventually
that we call our students--student athletes--employees, and
they just become a true working employer--working relationship,
then I do think some of those things as Title IX and making
sure that we provide a broad offering to all of our students
becomes at risk, the pressures become greater.
Chairman Kline. The gentlelady's time has expired.
Mr. Bishop?
Mr. Bishop. Thank you very much, Mr. Chairman. And to our
panel, thank you for your testimony.
Mr. Eilers, particularly I want to thank you for you
testimony. Because you have highlighted some of the issues that
I want to talk about. You described the effort at Northwestern
as a means to an end. I think it is also fair to describe it as
a cry for help. I think that we talk about having the student
athletes interest at the center of what we do--and I used to
run a college so I--it was a Division 2 school. But there is
really nobody talking for the students. And I think what is
happening at Northwestern is that this is an effort to get
somebody to listen.
And so I want to address this to Judge Starr and to Mr.
Muir. You both represent highly-regarded, very prestigious
institutions that have succeeded both on the athletic field and
in the classroom. You both are members of very large
conferences. And I want to just go over what the players at
Northwestern are asking for. They are asking for efforts to
minimize college athletes' brain trauma risks. They are asking
to prevent players from being stuck paying sports-related
medical expenses. They are asking that graduation rates
increase. They are asking that educational opportunities for
student athletes in good standing be protected.
They are asking that universities be prohibited from using
a permanent injury suffered during athletics as a reason to
reduce or eliminate a scholarship. They are asking to establish
and enforce uniform safety guidelines in all sports to help
prevent serious injuries and avoidable deaths. And they are
asking to prohibit the punishment of college athletes that have
not committed a crime. Is there any one on that list that I
have just mentioned that is unreasonable? Is there any piece of
that your institution would say no, I am awful sorry, we can't
do that?
Or let me phrase it positively. Would you each be willing
to lead an effort in your respective conferences to see to it
that your fellow member institutions say absolutely, guys, you
are absolutely right? We are going to do it, it is the right
thing to do.
Judge Starr. Mr. Bishop, I think that series of questions,
they are in fact important. They are legitimate. And we are, in
fact, continually working toward addressing them. Take the
concussion policy. The NCAA does have a concussion policy, and
requires members to--our conference requires it. And we have a
concussion policy. We continually monitor that. There are
studies underway, from the University of Virginia and the NCAA
has personally has directly funded a study. So this is evolving
science. So yes, we want to--
Mr. Bishop. Here is my question.
Judge Starr. Yes.
Mr. Bishop. I am sorry. I don't mean to be rude, but I only
have five minutes. Should we not--if unionization is as bad as
so many of you think it is, should we not use this as a
catalyst? I mean, and not just talk about conversations and not
just talk about yes, we are looking at it and we are studying
it. Let's do it. Can't--I mean, you are very powerful
institutions in very powerful conferences that people look to
for leadership. Can you not just say we are going to lead an
effort to make this happen?
Judge Starr. Again, briefly, I believe it is happening. Can
we move more quickly? Of course, you could always move more
quickly. But it is, in fact, a serious conversation. These
myriad issues that you have rightly raised are under serious
review. And it is not just a conversation, things are
happening. The NCAA, the cost of attendance for the Division
1--
Mr. Bishop. I want to give Mr. Muir a chance. But my
question is, in these conversations who is speaking for the
student athlete?
Mr. Muir. I would say there are a multiple of individuals
who are speaking for the student athletes, including the
student athletes themselves. We here are--a number of our
constituencies, both on and off campus, both saying we need the
student athlete's voice. And certainly we are being attentive
to that.
Our presidents are at the table. They are constantly
thinking about this. They are trying to take leadership roles,
as you so mentioned. Athletic directors, I was at an athletic
directors meeting yesterday. Again, this is a prominent
discussion point because we do want to make sure that the
student athlete's experience is the best it possibly can be.
And we need to enhance it.
Mr. Bishop. Right. Let me just say one last thing. I hope
that we can somehow collectively get to the point where we hold
student athletes to the same--or hold coaches to the same
standards we hold student athletes. A coach can break a
contract with impunity. When you left Yale University you had
to sit out a year. I don't understand why it is that a coach
can break a contract with impunity, and a student athlete is
penalized if he wants to move from one institution to another
institution that he thinks better serves his needs.
Mr. Eilers, you want to comment on that, or--
Mr. Eilers. No. I think I kind of said it in my testimony,
Congressman Bishop. But I do think if you are--if--and I don't
understand why we can't get there. People should go to college
to get degrees, first and foremost, full stop. Part of their
educational experience, at least for me, was participating in a
sports-related program, just like someone would do drama,
speech, debate, what have you. It has made me who I am today,
it has made me a better father, a better husband, a better
person, a better businessperson.
And so, you know, it is--I would disagree with Mr.
Schwarz's characterization that it is separate and distinct
from your educational experience. I think it is integral, like
any of those things. And what we need to do is make sure that
student athletes have the ability to go to an institution for
four years and earn a degree, and leave with a degree. And so
if that is the case, I would respectfully disagree that there
should be some quid pro quo. That person should make a
commitment to that coach to give him four years of service
coming out of high school.
If we don't do that, though, then I would submit to what
you are suggesting. That we should allow people to then flow
around, it they should be equal. I want a two-way street to be
equal for both parties.
Chairman Kline. The gentleman's time has expired.
Dr. Roe?
Mr. Roe. Thanks very much, Mr. Chairman. And just to
clarify a couple things that Mr. Schwarz started with. A full
disclosure. The head basketball coach and athletic director
where I was, where I went to college, Dave Luce, did both jobs
for a long time. This is a mid-Division 1 school. And I am
absolutely committed to college athletics. I donated the money
to build the athletic academic center at the college.
Mr. Schwarz, you pointed out about how much money--and I
agree, the NCAA is. But most don't live at that lofty level. I
just looked--pulled up on my iPad right here, most colleges
lose money in athletics. They don't make money. A few of the
big areas do, big schools do. But at Austin P, it is a $9
million budget a year, not a $90 million budget. And they are--
most schools at that level are struggling. Now, I realize this
is unionization at a private university, not a state
university. But student athletes, Mr. Eilers, I agree totally
with you.
And, Mr. Bishop, a couple things. You can transfer now
and--without loss of a time if you transfer at a different
level. If you go from Division 1 to Division 2, or Division 2
up, you can play immediately. Just to clarify that for
everyone. Either Mr. Livingston or maybe Judge Starr, you--I
think this ruling, what concerns me is, at least when I played
sports it was fun. I had a good--I mean, we sound like it is
some kind of drudgery here. I--golf is sometimes, but for the
most part sports are fun. That is why you play sports.
And as Mr. Eilers clearly said, he added his experience as
a student athlete and it made him a better--he mentioned it
very eloquently. I think that is what athletics--it did for me.
It taught me--I learned a lot on the playing field I would
never have learned in the classroom. So it is--I think it is
added. Do you think this ruling could potentially cause schools
just to drop football, or sports?
Judge Starr. Well, we have to consider all options in terms
of the best interests of the university. I know that the
president of the University of Delaware has said that--and he
was a student athlete himself, that the University of Delaware
would not be able to continue. Now, it is a public university.
So it really is raising a host of serious questions. I think it
could, in fact, at a minimum cause programmatic curtailments. I
think it raises the issues that we talk about under Title IX:
how do you achieve the Title IX, a very important balance to
achieve, as a matter of policy and as a matter of law.
It is simply the wrong way to go to address these very
important issues. The number of questions that are raised are
so myriad they are just remarkably wide-ranging. And I don't
think there is a real answer for most of these questions. The
Fair Labor Standards Act is yet another. The antitrust laws
themselves that were emphasized earlier. So it is bringing us
into a sea of complete uncertainty.
Mr. Roe. I agree, and in the--excuse me, go ahead--
Mr. Livingston. If I might add, the issue that Mr. Schwarz
talked about in terms of the protection for entire leagues,
where they all belong under one collective bargaining
agreement, is absolutely correct for professional sports. That
does not exist in college sports. The NLRB only would govern 17
out of the approximately 120 schools that play football. And so
you end up with a potential arms race for those that can afford
it, and others--as Judge Starr says--may decide to make a
decision to get rid of it. Sports are competitive, and so the
teams that want to win are going to, you know, pay their way up
to win.
Mr. Roe. I think if Northwestern unionizes they are going
to play 12 homecoming games is what I think they are going to
do. In the event that the student athlete unionizes and parties
can't agree on the terms and conditions of employment, is it
possible the student athletes will strike?
Judge Starr. That is a traditional tool in collective
bargaining. And that itself raises not only just the idea,
seems to be unthinkable that the football team goes on strike.
Well, then what about the non-scholarship athletes? So, again,
that is the incoherence of the collective bargaining agreement.
But does that mean they also walk out on class? If they are
employees, then what is their relationship to the academic
enterprise?
Mr. Roe. I think, Mr. Eilers, I am going to you the final
comment. I think you said it. When I was in college, the
students were true student athletes. Our quarterback had a 4.0
as a physics/math major. And there are many people that use
athletics to do what you have done to enhance their--if you
play--you were obviously an incredible athlete because you
played professional football. Well, you are if you got in the
professional leagues.
But I think your comments were absolutely spot on, and that
is the way we should look at it as a student athlete. And you
pointed out that some students play in the band, some, and they
practice for hours. Some go to ROTC. They work very hard. And
drama and other things. And so I will give you the final say on
this.
Chairman Kline. Actually, the gentleman's time has expired.
[Laughter.]
Brilliant timing.
Mr. Courtney?
Mr. Courtney. Thank you, Mr. Chairman. I think, you know,
listening to the testimony, most people, I think, would agree
that what happened at Northwestern was because the NCAA has
created a vacuum in terms of students being treated fairly. And
if you look at the mission statement of the College Athletes
Players Association, one of the mission statement items is to
provide better due process in sanction actions. Again, I
represent the University of Connecticut. We had a pretty
exciting spring.
Shabazz Napier made two incredible, I think, courageous
comments during the course of the lead-up to the tournament.
Number one, describing in a way that might be embarrassing to
some that sometimes he went to bed hungry at night. And that is
because of the nickel-and-dime, Mickey Mouse NCAA rules in
terms of defining what universities could provide to students.
I mean, it was kind of almost comical to see Mr. Emmert rush to
announce a new rule on April 15 that now has changed and
reformed that, of course, not because of what Mr. Napier said.
But, you know, for a lot of us, you know, it seems, at
times, that the only thing that changes the NCAA is external
pressure. And frankly, that is what I think this event at
Northwestern has kind of produced. We wouldn't be having this
hearing to talk about the plight of students but for the
actions of those students. But frankly, there are other times
when these sanctions--process is far more pernicious than
maybe, you know, missing a--a midnight snack. You know, we look
at what Mr. Napier said about the fact that this is what
happens when you ban us; the due process, and I use that term
loosely, that the NCAA engages in, unfortunately, far too many
times shoots the bystander in an effort to try and comport with
some measure of student athletes.
That school was banned because of a cohort of students who
had poor academic performance. And there is--no one is going to
dispute that. In 2007, not one player on that team was around
at the university when those scores triggered an APR finding
that--with a four-year look-back period. And yet they found
themselves in a situation where they were banned from post
season play because of a rule that makes absolutely no sense.
And by the way, other schools are doing the one-and-done,
you know, system. Which--you know, try and explain that to the
average person why that is okay, and yet a student like Shabazz
Napier is punished. By the--he is going to graduate in a couple
weeks. He is getting his full degree. He is getting punished
for something that somebody he never even knew who was at
stores seven years earlier in terms of their performance. And
that is where, again, I just am very skeptical, frankly, of the
protections for students who get swept up in this bizarre,
Byzantine system of trying to comport with some definition of
student athletes.
And with all due respect to the witnesses here, I don't
think the colleges and universities--because they have their
own pressures in terms of not rocking the boat with the NCAA to
really step up and provide real, honest to God advocacy for
students who are getting swept up. Perry Jones III was
disqualified at Baylor because his mother took three small
loans when he was a high school sophomore, before he even went
to Baylor. And yet he was punished later on in his college
career because his mother was in a desperate financial
situation, took a short-term loan from an AAU coach.
I am sure--you know, no one wants to, you know, vouch for
that. But nonetheless, why would he get punished for that
except for the NCAA's desperate attempt to try and somehow
comport with the definition of student athletes.
So, Mr. Schwarz, I guess--you know, when we talk about
treating people with dignity--because that is, to me what is
really so offensive about the way--you know, the NCAA violated
patient rights in that Miami investigation. I mean, the power
that they can exert, again, tramples on people's ability to
even just have basic due process rights when these sanction
hearings and investigations.
And I was wondering if you could just sort of put your
comments in that context.
Mr. Schwarz. Sure. Sure, I mean, I think it is a great step
that the NCAA has started saying that if a school wants to give
an athlete a meal they are allowed to. Previously, the
individual choice to feed an athlete was prohibited beyond a
certain number of meals. And that is the level of cartel
control we see here.
And you are exactly right that the issue is not whether a
benevolent organization will deign to provide the people who
bring value with some crumbs. It is a voice, it is advocacy.
I don't know how often James Brown is quoted in here, but
here he is saying ``I don't want nobody to give me nothing.
Open up the door, I will get it myself''. And that is,
effectively, what the movement here is about. It is about
saying give us some avenue. Let us come in. It is an NCAA
violation to come in and ask for money right now, as an
example. You get permanently banned.
Chairman Kline. The gentleman's time has expired. And I
want to commend him, the gentleman from Connecticut, for
getting a little bragging without actually mentioning the
basketball word.
[Laughter.]
Dr. Desjarlais?
Mr. DesJarlais. Thank you, Mr. Chairman. Certainly
appreciate all of you being here today, bringing us your
expertise.
I wanted to go to Mr. Livingston first, and ask a few
questions. Mr. Livingston, the NLRB regional director's
decision in Northwestern applies solely to private universities
because state universities, as state government entities, are
excluded from NLRA coverage. That means the decision only
applies to a portion of universities in each conference and
division. However, state law applies to public colleges.
What are the differences between state and federal laws
regarding collective bargaining and do mandatory subjects of
bargaining differ?
Mr. Livingston. There are a variety of differences and the
states actually vary widely. The NLRA, as you know, covers
organizing rules, bargaining unit determinations, subjects of
bargaining, and the right to engage in economic action. All
those differ under various state laws. For example, some
prohibit public sector bargaining entirely. Others permit
public sector bargaining on very limited terms. Others don't
have the right to engage in economic action. Others, for
example, would have interest arbitration. So you would have
different subjects being negotiated by different groups in
different collective bargaining agreements.
It ultimately would end up with individual bargaining and
an un-level playing field. Different terms in different
contracts. Then when those teams compete, unlike in
professional sports you have got something that I simply don't
think is workable.
Mr. DesJarlais. Okay, yes. And I think that is an important
point. That if the scholarship athletes do organize the union,
universities will bargain over terms and conditions of
employment. And the parties are compelled to bargain over
mandatory subjects of bargaining. What terms and conditions of
employment are mandatory subjects of bargaining?
Mr. Livingston. I appreciate the comments that we have
heard from everyone today about the need for college athletics
to improve. You know, improve the lot of the student athlete.
But whether it is the College Athletes Players Association or
any other union--and, of course, any other union has the right
to go ahead and organize--under the National Labor Relations
Act they could bargain about a wide variety of things. The
statute is wages, hours, and other terms and conditions of
employment. That is so broad that it would cover compensation,
signing bonuses, retention bonuses, hours of work--so in terms
of schedules, potentially even class attendance.
While CAPA's goals may be limited right now, if they are
eventually certified as some organization based on member
desires maybe they become greater. And, of course, any other
union wouldn't be limited to the goals that we have heard
today.
Mr. DesJarlais. In the event that student athletes
unionize, they will pay dues to the union. Where do these
payments come from?
Mr. Livingston. Dues are an internal union matter. So how
they decide to do it is up to them. But under section 302 of
the Labor Management Relations Act, it is clear that an
employer--in this case, the university--can't pay it. An
employer would have to bargain over check-off, for example, but
that comes from wages. And so unless we are talking about wages
in some form, the union would have to answer that; CAPA or any
other union.
Mr. DesJarlais. We touched briefly, earlier, on taxation.
These universities and organizations are tax-exempt. If a
student becomes an employer are they then subject to taxation?
And if so, does that affect Pell grants, ability to get student
loans? Where do we go to--how do we go down that road?
Mr. Livingston. Those really are beyond my area of
expertise. But I do believe that others perhaps can answer that
question.
Mr. DesJarlais. Does somebody else have a comment on that?
Judge Starr. Well, section 61 of the Internal Revenue Code
has a very capacious definition of what is income. So if an
individual is an employee, then very strong arguments, it is
unsettled and, obviously, this is a new question. But it is
going to open up serious questions about the entire range of
services, including the scholarship itself. There are issues
presently with respect to how a scholarship is treated. But if
they are employees, then it is compensation and it is
presumptively taxable.
Mr. Livingston. And if they are employees, and you presume
that they would have to pay taxes on it, I would presume that
the goals any scholarship negotiations, wage negotiations would
be to increase that amount to take into account the tax
consequences.
Mr. DesJarlais. Okay, thank you.
I yield back.
Chairman Kline. The gentleman yields back.
Ms. Fudge?
Ms. Fudge. Thank you very much, Mr. Chairman. And thank you
all for being here today.
Just want to make a couple of comments about things that I
have heard in your earlier testimony. I want to go back to
something my colleague, Mr. Courtney, said. I happen to have
attended Ohio State University. I knew a lot of the football
players when I was in school. This issue was a problem then, it
is an issue today. So why has it not been taken care of in more
than 30 years? There is no reason for it. And but for the
courageous actions of these young men, we wouldn't be talking
about it today. So I want to put that on the record.
And then, for you, Mr. Livingston, you talked about the
Ohio statehouse, who has determined that our athletes are not
employees. Just because they said it doesn't make it so. These
are the same people that want to restrict voting rights. So
just because they said that doesn't make it so.
As well, we do know that student athletes, that scholarship
athletes, are treated differently than those not on
scholarship. We know it, and we just need to admit it and not
even pretend that there is some difference. The restrictions
they have and the time commitment is much different than
students who are non-scholarship students.
First question, I would really like to ask Mr. Schwarz. In
your written testimony, you mentioned the level of profit the
NAAC--I mean, the NCAA is making off its student athletes. Do
you know if any of that profit is dedicated in any way to
providing health benefits to those students?
Mr. Schwarz. Some of it is. I mean, most on-field injuries,
the immediate cost of that injury is covered. It is not
required, but it is covered. Long-term injuries that linger
typically are less likely to be covered. So it is not always
the case.
Could I just add one quick thing, real fast?
Ms. Fudge. Very quickly.
Mr. Schwarz. You mention that since you were in college
there has been a problem about the cost of attendance stipends.
The reason that there aren't cost of attendance stipends is
because the NCAA voted them away in 1973. They have been
claiming that they have been talking about bringing them back
now since 1973. In 1986, something was tried, they didn't pass
it. In 2006, something was tried, they didn't pass it. Now they
are telling you, oh, it is coming real soon. There has been a
long history of its coming real soon.
Ms. Fudge. Well, thank you. You know, I mean, the NCAA also
doesn't want these young people to be able to make a living,
the little bit that they can, as well. I mean, I was around
when the whole scandal at Ohio State happened about some kids
selling their own shirts. The university sells their shirts
every day, but the shirts that they take off their back they
can't sell. I won't go to that one.
But I would like to ask Mr. Starr and Mr. Muir, what do
your football and basketball coaches make annually?
Judge Starr. I don't have the number off the top of my
head. It is substantial, it is a free market. And so we want to
keep our coaches. We have had stability, so I--
Ms. Fudge. But you--
Judge Starr.--I can get those for you.
Ms. Fudge. Would you please?
Mr. Muir?
Mr. Muir. I am not at liberty to share the numbers.
Ms. Fudge. Is it a secret?
Mr. Muir. No, it is just something that we don't share at
Stanford.
Ms. Fudge. Okay.
Mr. Muir. But at the same token--
Ms. Fudge. Okay, thank you. That is just the only thing I
wanted to ask you.
Yes, sir?
Mr. Schwarz. I know the answer for Baylor. Coach Art Briles
makes--made, in 2011, $2.4 million; Scott Drew made $2.1
million. And the women's basketball coach made $1.3 million. At
Stanford, the number isn't published. But in the one year that
Jim Harbaugh's salary rose above the Stanford surgeons, who are
the top five employees, he made a little over $1 million.
Ms. Fudge. Thank you very much.
Mr. Starr, you mentioned earlier that obviously the goal of
attending a college or university is to obtain a degree. I am
assuming we agree on that point.
Judge Starr. Yes, we do.
Ms. Fudge. Okay, but do you also realize that for Division
1 football athletes, the admins basketball players, their
graduation rates across the board hover around 50 percent?
Judge Starr. At Baylor it is higher. At Baylor it is 62
percent for our men's basketball team. But I could not agree
more, Ms. Fudge. We need to create--especially in men's
basketball, but to a considerable degree in football, as well--
this culture of student athlete. And it begins with the
coaches, it begins with the head coach. But the entire
infrastructure has to be oriented toward that. At the same
time, these are young men and young women who are making their
own choices. They decide what is important for them. All we can
do is create a culture of encouragement and of genuine support.
Ms. Fudge. Thank you very much. I see my time is going.
I will yield back, Mr. Chairman. Thank you, thank you all.
Chairman Kline. I thank the gentlelady.
Dr. Bucshon, you are recognized.
Mr. Bucshon. Thank you very much. I will be brief. Anyone
can answer this question. Do athletic scholarships give
potential academic opportunities to students who otherwise
would not have them available to them because of--shearly based
on their ability to play a sport?
Mr. Muir?
Mr. Muir. Yes, I would say that the opportunity to attend
an institution like Stanford, to be afforded the opportunity to
both compete at the highest level as well as get a quality
education, we had less than five percent be admitted this past
year; 40,000 applications. And so when our coaches present
young people with an opportunity to come and compete at
Stanford it is a wonderful experience. And I think our kids, as
soon as they get in the door, understand and cherish that
opportunity. And as I said, with the high graduation rate they
understand that they are part of the fabric of the place.
Mr. Bucshon. Thank you.
Judge Starr. There is a very significant opportunity for
first-generation college attendees. So it is a door opener, it
has been historically. I believe the NCAA has said that
approximately 15 percent of student athletes who receive
scholarships are first-generation; no one has attended college
in their family. So it is a great part of the American story.
Mr. Bucshon. Thank you. I will just have a brief comment,
then. I think we all here today--people testifying and members
on both sides--know that there are substantial issues we are
discussing today. And I am hopeful this discussion will
continue and make things better for, and improvements to, our
college athletic system. So that young people across the
country can continue to compete. But also, as many of you have
outlined, more importantly have access to an educational
experience that helps them in their future careers and down the
line.
So with that, I yield back.
Chairman Kline. The gentleman yields back.
Ms. Bonamici?
Ms. Bonamici. Thank you very much, Mr. Chairman. This is a
very interesting hearing, and I appreciate your expertise, all
of the witnesses who are here today.
Mr. Eilers, did I say your name correctly?
Mr. Eilers. You did.
Ms. Bonamici. Thanks. Mr. Eilers, you talked about how the
debate should be about what is the best way to address the
goal. And I really appreciate that. I know that some of my
colleagues have mentioned the importance of addressing the
goals that the college athletes have set out.
I was reading an editorial that came out after the regional
director's opinion that said that the college sports
establishment has brought this trouble on itself by not moving
to address players' legitimate grievances. Obviously, the
regional director found some differences between what
Northwestern is doing and what you have described in your
experience and, of course, Mr. Muir and Judge Starr.
I wanted to ask just a quick question. I know, Mr. Eilers,
you said you went--you have an MBA from Kellogg school, a great
program. But you are not here representing Northwestern.
Mr. Livingston, do you happen to represent Northwestern?
Mr. Livingston. I do not.
Ms. Bonamici. I was just curious about that because--
Mr. Livingston. I am here on my own behalf.
Ms. Bonamici. I was just curious about that because, you
know, we have heard different experiences here and different
facts about your colleges, like Mr. Muir, what Stanford is
doing. But what we are talking about is a decision that is
specific to Northwestern. And I--one of the things that the
regional director found was that the scholarship players are
identified and recruited in the first instance because of their
football prowess and not because of their academic achievement
in high school. Is that similar, Mr. Muir, you are shaking your
head no. Is that different from your experience at Stanford?
Mr. Muir. That is definitely different. When I think about
what our coaches are doing in identifying young people to
potentially come to Stanford, as I said earlier the first
process that they have to hurdle, they have to go through, is
making sure that they can pass admissions and make sure that
they can enter school just like the general student. So we are
weeding out individuals. Because if they don't have the
academic record, doesn't matter what their athletic
accomplishments are. If they are not able to--in order to meet
the needs of ensuring that they get an education that is not
going to happen.
Ms. Bonamici. And I was trying to figure out from reading
part of the regional director's opinion, what happens if a
class that--a player, a scholarship player, wants to take,
because of his major--or I should say his or her major because
maybe this could be expanded to women's sports, as well--what
happens if that class conflicts with practice? What does the
college do?
Mr. Muir. So when I attend a practice, when I see our
student athletes practicing, getting ready for a competition,
there is many a time where I will see our football student
athletes specifically walk off the field because they are
attending a lab, they are attending a class and that comes
first. And--
Ms. Bonamici. And they are not penalized for that, or--
Mr. Muir. They are not. Those--
Ms. Bonamici. They are permitted to do that?
Mr. Muir. No, those are the same kids who are--who will
play on Saturdays, as well, too. So--
Ms. Bonamici. Was that your experience, too, Mr. Eilers?
Mr. Eilers. Yes, it was. And there--you know, there are
sacrifices it made. So I took organic chemistry one summer,
right, between my sophomore and my junior year because of that
fact and trying to take the labs. I would only submit one
additional item, which is I think what Stanford has done is
incredible in football, and what they do on the academic front,
accomplishing both. There was a brief moment in time, before we
ran into an unfortunate game against Alabama in the national
championship, I was most proud of Notre Dame having the highest
graduation rate for the football players, as well as briefly
being ranked number one in the country. So you can do both.
Ms. Bonamici. Well, that is interesting. Because the
regional director, I believe, found that Northwestern has a 97
percent graduation rate for its players, which seems to be
pretty high.
I wanted to ask also about what happens during the
recruitment process? Because I mentioned what the finding was
about Northwestern that they were recruited because of their
football prowess. But what happens during that recruitment
process? How are the prospective athletes actually made aware
of all of the opportunities that are available to them?
How do they decide what they are considering during that
consideration process? Who informs them about, you know,
whether they will lose their scholarship if they don't stay on
the team? Mr. Muir, and maybe, Judge Starr, you could respond
to that, as well.
Judge Starr. First of all, in terms of the recruitment
process I have personally seen what that process looks like.
And it includes a very thorough introduction to here is the
academic support. They will meet people from the academic
support staff. They will see--and we try, of course, to
determine is there a diagnostic testing issue. That is done by
the university. But those tried in terms of any learning
disability. So there is a very holistic introduction to the
university as a whole, including the academic side. And
usually, the parents or parent, or loved one is there with the
prospective student athlete.
Ms. Bonamici. Thank you. And my time has expired. I yield
back.
Thank you, Mr. Chairman.
Chairman Kline. I thank the gentlelady.
Mr. Rokita?
Mr. Rokita. I thank the chairman. I thank the gentlemen for
your testimony today.
You know, I think from what I heard Judge Starr kind of, as
he would being a former judge, kind of really clarified the
issue. And that is, are we going to use the NLRA as a vehicle
for the improvements that you have all talked about today. I
suspect--no, I can't imagine--the authors of the law or the
intent of Congress was to cover this situation. But let's poke
around with it. Let's explore a little bit.
Mr. Livingston, if the students were to strike or if the
athletics department or university were to lock the players
out, like you would have at a steel mill let's say, during the
collective bargaining process, would the students be able to
attend class?
Mr. Livingston. That is an unanswered question. The only
experience we really have is, in professional sports where it
is the entire league that typically goes on strike or is locked
out--
Mr. Rokita. That is in professional sports.
Mr. Livingston. But in college, because we don't have it,
we don't know what would happen. And so, for example--
Mr. Rokita. Because in college you have classes, right, and
teachers and whatnot?
Mr. Livingston. Yes. Would they be entitled to stay in
their dorms? Would they have to vacate those? Would they have
to leave class, or start paying for it.
Mr. Rokita. Thank you.
Mr. Livingston. Those are unanswered questions.
Mr. Rokita. Right. Yes, certainly not answered by the law
or the regulations, or anything else.
Mr. Muir, Northwestern is in the Big-10 conference, as you
know, along with two schools in Indiana, one being Purdue, in
my district. Let's say that Northwestern students, student
athletes, were to unionize and proceed to either strike or be
locked out. How would that affect the rest of the conference?
Using your knowledge and experience.
Mr. Muir. You know, not being at Northwestern I don't know
if it is appropriate for me to jump on that. But I--
Mr. Rokita. No. I just say using your experience and
knowledge, what do you think would happen? How do you feel?
Mr. Muir. I think it would be difficult to continue to
schedule and continue to have competition.
Mr. Rokita. If Stanford were in a similar situation, what
would be the effects?
Mr. Muir. I think if that was the case, we were going down
the path, Stanford might not opt to continue to compete at the
level that we are currently competing at.
Mr. Rokita. Right, kind of to Dr. Roe's point, or comment
that he made earlier.
My district also has St. Joseph's College, which I am proud
to be a board member of. It is a Division 2 school, which if I
understand right you can share scholarships at that level
between students, and there are limited funds. Again,
experience--looking into your crystal ball--what would be the
effect of Division 2 students with regard to this?
Mr. Muir. If this--again, I am not a legal expert. But if
this were--the students at Division 2 wanted to unionize as
well, too, I think that would dramatically affect whether
institutions can continue to offer--have these offerings.
Mr. Rokita. Yes.
Mr. Muir. Which is part of the fabric of higher education,
I think, intercollegiate athletics. And so that would be a
shame if that all of a sudden changed.
Mr. Rokita. Yes, I--these questions, and your answers,
continue to bring clarity to me that I don't think this law was
even intended for this kind of situation.
Mr. Livingston?
Mr. Livingston. May I add something? That we are talking
about scholarships as though there is a finite limit. Under the
National Labor Relations Act, the union would be able to
bargain about the number and, of course, the value. So half-
scholarships versus full scholarships, it is all a subject of
bargaining under the NLRA.
Mr. Rokita. Understood. Thank you.
Judge Starr, coming to you. You know, we often talk about,
on this committee and in businesses across the nation and in
union halls, about the cost of unionization, the cost of
bargaining, the cost of dues, et cetera. Whether or not a union
member should have to pay dues voluntarily or not have a choice
in that. What do you think, in your experience, would be the
cost of unionization for the employer and the employees? Can
you estimate employer and employee cost if student athletes
unionized at Baylor, for example?
Judge Starr. I have not--we have not punched through the
numbers enough to even come up with a reasonable estimate. What
we do know is that the whole idea of collective bargaining is,
in fact, to increase the whole reservoir of duly agreed upon
commitments by the employer. So I think part of the question
is, what can we do outside the collective bargaining--which has
never been contemplated before--that, in fact, improves student
welfare. That is the ultimate policy question, it seems to me,
that you have rightly focused on. And the unionization process
is just raising a whole host of questions that we can't answer
today.
But what we do know, the costs will, in fact, go up.
Including issues, then, with respect to how is that student
going to be treated as an employee in terms of taxation,
Medicare and the like.
Mr. Rokita. Thank you. And that is a segue into my last
question. And it is for you, Judge Starr. Considering that the
world is a jury, watching today people might get the impression
that the acknowledgment that improvements need to be made is an
acknowledgment that someone was caught or that this just
started as a reaction to this recent decision. Can you give us
evidence otherwise, via your testimony?
Judge Starr. Yes.
Chairman Kline. I am sorry. I am sorry, Judge. The
gentleman's time has expired.
Mr. Rokita. Can the gentleman respond?
Chairman Kline. The gentleman's time has expired.
Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman. Mr. Schwarz, in many
cases the scholarship requires you to play, in most cases?
Mr. Schwarz. My understanding is, until 2011 the NCAA
mandated that the scholarship could only be for one year,
whether schools wanted to give one or not. If you stopped
playing during the course of that year you were allowed to
continue for that year, after which the scholarship would not
be renewed. The current deal--
Mr. Scott. Yes, some colleges, you get a scholarship and
you can continue with the scholarship whether you play or not.
Isn't that right? If you have a needs-based scholarship?
Mr. Schwarz. If you choose not to play football, the
schools have the option per the agreement to terminate the aid,
even on a four-year deal, at the end of that year.
Mr. Scott. Okay. Now, you have indicated the number of
hours that had to be committed. Is an athlete required to
comply with that schedule?
Mr. Schwarz. You know, in the NLRB hearing the facts that
came out that weren't controverted--and, in effect, I heard
Mark Emmert say similar things--it is a 40-, 50-, 60-hour a
week job during the season, and about half that off-season.
Mr. Scott. Okay. Now, can a student ever be--before the
ruling, could a student ever be an employee of the college,
like if they worked at the library or something like that?
Mr. Schwarz. I mean, students are employees at universities
all the time. At the Stanford Daily, the editor in chief, I
think, makes about $45,000. Football players--
Mr. Scott. Now, in that case, is the student's--is the
status of a student, does that affect his status as an
employee?
Mr. Schwarz. No. Students, employees are mutually exclusive
concepts--
Mr. Scott. And the part-time job could be an essential part
of the financial aid package. You get a certain amount of
scholarship, you get a certain loan and we will make sure you
get a part-time job at the library. That could be an essential
part of--
Mr. Schwarz. That is right. My roommate in college did just
that.
Mr. Scott. And it is unlikely that if you quit your job at
the library you would lose the rest of your scholarship. That
would be a little unheard of, wouldn't it?
Mr. Schwarz. I think that is right. You know, there are
lots of ways that students outside of sports can be
compensated. At Stanford, there was a class that required
students to sell an app on Facebook. And to commercialize it
was part of the requirements of the class, and they got credit
for doing that rather than being--you know, losing--
Mr. Scott. Okay. Now, is it possible that some student
athletes would qualify as employees under this ruling, and
others not qualify?
Mr. Schwarz. My understanding is, the ruling applies only
to FBS football athletes who receive a scholarship.
Mr. Scott. Now, what would the difference be for those who
would--I mean, if you have a scholarship and just put a couple
hours a week in swimming or wrestling or some other sport that
doesn't have the time commitment, is it possible that you would
be a student athlete and not an employee?
Mr. Schwarz. Well, I object to the term ``student athlete''
because it is a term of our design--designed to basically dodge
legal agreements. But if you say ``college athlete,'' I think
college athletes are college athletes if they go to college and
they play sports.
Mr. Scott. Well. And it is possible that some would qualify
as employees and some would not.
Mr. Schwarz. I think that is right.
Mr. Scott. And if a college wanted to avoid the union
problem, they could treat them like college students and not
like employees. Is that right?
Mr. Schwarz. I am not sure if I am fully understanding,
but--
Mr. Scott. Well, if you are--if you have got a scholarship
for the chess club or something, or band, and are not required
to put in these kind of hours, you would be a--I think--a
college athlete.
Mr. Schwarz. That is right. And actually, the reverse is
true. Right now, the chess team has more rights than college
athletes because the chess team could say I want a college
scholarship that covers more than just the athletic
scholarship. They have the right in the market to bargain, but
football athletes don't.
Mr. Scott. But it is possible, under this ruling, that some
would qualify as employees and others would not.
Mr. Schwarz. I think that is correct.
Mr. Scott. Mr. Eilers, you indicated issues of the right to
scholarship, medical treatment, the right to minimize brain
trauma and other situations like that. A union could actually--
could engage these issues. If it is not the union, who would be
in a position, in a bargaining position, to engage these issues
and have the resources actually to do the research and make a
presentation on behalf of the athletes?
Mr. Eilers. Yes. Mr. Scott, as I said in my testimony, I
don't have a solution. To me, it should be the NCAA and the
member institutions. And it is clear--and I think, some, just
to clarify what I think are some misconceptions--schools
operate differently. At Notre Dame, there is a specific
instance of a scholarship athlete, played football, decided
after his sophomore year not to play football anymore. We
honored his scholarship, he graduated with a degree, in four
years, from the University of Notre Dame.
There may be other schools that operate differently. And
our walk-ons were treated just like the scholarship athletes.
Maybe at the University of Ohio--at Ohio State they weren't. So
there needs to be an elevation across all, I think, collegiate
sports to make sure that we are delivering for the student.
Chairman Kline. The gentleman's time has expired.
Mrs. Brooks?
Mrs. Brooks. Thank you. And thank you all for your
testimony today. It is so very important. I am the daughter of
a high school football coach, and the mother of a D1 soccer
graduate from Javier University who suffered a serious
concussion in high school in the last game of her high school
career. And after wonderful medical treatment and proper
healing, she went on to play four years of D1 soccer.
Now, many parents, and people who are helping these
athletes get scholarships--which they all work so very hard in
their lives to achieve those scholarships--parents advocate for
these young people, the students advocate. The student athlete
advisory committee of the NCAA advocates. I would assume the
president of the universities and the representatives of each
of the conferences that represent the NCAA on their board are
advocates for these athletes.
And I would submit that there are many avenues to rectify
the problems. And there are continued problems for college
athletes. But these athletes make these choices as to which
schools to attend.
One thing we haven't talked about enough is the role of the
coaches in all of this process. And the coaches, who are
employees of the university who report to the athletic
directors who report to the college presidents who report to
the board of trustees, what mechanisms are there in your
universities for the students to voice their concerns with the
coaches and the coaches to voice their concerns to the
administration?
I will start with you, Judge Starr.
Judge Starr. Yes, we do have at Baylor, and it is
frequently the case at most institutions, that there is a
student athletic council. So these are student athletes
themselves who come together. They are elected by their fellow
student athletes. And so they have direct access, not simply to
their coaches but to the athletic director. They can also
communicate with someone who we haven't talked about this
morning. That is the faculty athletic representative, who is
to, in fact, bring an academic perspective to bear in terms of
the entire athletic program, including reviewing specific
cases.
So there are--you are absolutely right. There are numerous
avenues for voices to be heard. The NCAA--the final thing I
would say is, the NCAA itself, however, believes that in its
governance historically it has not done well in terms of
assuring the student athlete voice. And so there are reforms
underway that I think will be adopted that will, in fact,
better ensure that student athletes are there in the inner
councils of the NCAA.
Mrs. Brooks. Thank you.
Mr. Muir?
Mr. Muir. Yes, we have a number of opportunities to hear
from our student athletes and from our coaches. The student
athlete council at Stanford, the cardinal council I just met
with at my home two weeks ago. And it is a chance for me to
check in and hear various user concerns and how are we doing.
And it is really important.
Also, we survey all of our student athletes after every
season and we provide feedback. They can do it anonymously, and
we get information on just how their experience is going. Also,
the coaches have an open door policy. We look for that when we
select our coaches, and the proper leadership.
We think we have one of the largest leadership development
programs on our campus. And so that is another opportunity for
student athletes to engage. We have administrators, we have
counselors, we have tutors, all on a united front to make sure
that their experience is the best it possibly can be, and an
avenue for our student athletes to engage.
Mrs. Brooks. Is it fair to say that your coaches, in part,
are judged, and their successes judged in part, on the
graduation rates of their athletes?
Mr. Muir. Yes, we look at number of things. And we are
obviously looking at the graduation rates and what they are
doing in the classroom. And what they are doing to make sure
that they are solid citizens and a part of the university
fabric, which is what we have talked about earlier.
Mrs. Brooks. And I know there is always a tension when
student athletes have to leave and may miss classes or test or
labs and so forth. But as Judge Starr indicated, there are
faculty representatives. And there has to be that relationship
with the faculty and the athletic department does there not, in
order to ensure that those students take the tests, that they
get the proper reinforcement. And, in addition, the study
halls. I know my daughter, there were numerous study tables
that were required of all student athletes in order to achieve
certain GPAs. And those were absolute requirements that they
must achieve a certain GPA to get out of those study halls.
Are you familiar with that, Mr. Eilers, at Notre Dame?
Mr. Eilers. I am. It wasn't proactive like it is today when
I was there. If you started and you didn't perform well, you
got sent to study hall. Today, they default to everybody starts
in study hall. And the only thing else that I would comment,
Mrs. Brooks, is that I am aware of institutions that aren't at
this table but take academics and athletics seriously. And
their coaches do have provisions in their contract that if they
don't graduate their student athletes there are negative
implications to their salary and to their career.
Mrs. Brooks. Thank you.
My time has expired.
Chairman Kline. I thank the gentlelady.
Mr. Tierney?
Mr. Tierney. Thank you very much, Mr. Chairman. Thank the
witnesses today.
Mr. Eilers, I am impressed that, with the concern and the
way that you sort of agree with the concerns, the goals, of
CAPA, but you have a concern about unionization. But I want to
point out here, these concerns have existed for decades. So I
wish that you had an idea that you could put forward what you
would do if you did unionize. Because it seems totally
frustrating.
Mr. Schwarz, let me ask you. I mean, these are not new
problems, are they?
Mr. Schwarz. No, not at all. As I said, the issue of cost
of attendance stipends has been around since 1973 when, by
collective vote, the NCAA took them away.
Mr. Tierney. And so I agree with my colleagues, that there
are lots of advocates out there, different people. But
apparently it hasn't been very effective, right? I mean, how is
that going for you? They have been advocating all this time,
and the problem still exists.
Mr. Schwarz. Well, it is a one-sided discussion.
Mr. Tierney. On that. So there was also a comment made that
the student--the college athlete has choices. What would you
say to that?
Mr. Schwarz. You know, I am advocating for a much more free
market opportunity. I think choice would be great.
Congresswoman Brooks mentioned that schools--students have
choice. But what they don't have a choice about is the full
package that they receive. Because the schools fix the price of
what they offer. Everyone offers the same thing, so it limits
choice.
Mr. Tierney. So, the NCAA, you know, seems to have about
$3.2 billion in revenues. They can make all kinds of decisions
to make sure that number goes up, but they can't address even
five really basic issues except to say that it is coming soon--
Mr. Schwarz. Yes, if I could just--could I add just one
thing? The idea that this is a money-losing industry, you know,
is incredible. If you look at a money-losing industry, you
wouldn't see rising pay for employees, you wouldn't see firms
flocking to enter the industry. Nineteen new schools have
entered FBS since 1996. None have left. You wouldn't see
bonuses that are like 10-to-one for sports results instead of
academic results. The money is in the system. It is just that
it is being denied to the primary generators.
Mr. Tierney. Well, you made another point when we talked
about ability. You said that money is being funneled to
football coaches instead of to the male athlete, and cited some
coaches get paid $7 million on that. And when the money is
going to coaches in lieu of increased financial aid to the male
athletes, it sort of effectively puts a cap on that, and then
deprives female athletes of Title IX matching funds.
Mr. Schwarz. See, that--thanks right. Title IX doesn't
apply to coaching pay. That is why male coaches can make so
much more than female coaches. It applies to financial aid
provided to students. And so if that aid is capped, which it is
now--and even the NCAA says they wish it were higher--a lifting
of that cap on male athletes would result in effectively
matching funds to female athletes. So the cap on men also
results in a cap on women.
Mr. Tierney. Mr. Starr, I want to just go to some part of
your testimony. I am going to quote it, if you allow me.
``Under current principles of Title IX, the amount of financial
aid awards for student athletes must be in the same proportion
as the intercollegiate sports participation rate of male and
females.''
Judge Starr. Yes.
Mr. Tierney. But when I look at the data from the
Department of Education Web site, it shows that Baylor spends
56 cents on male scholarships out of every dollar, but only 44
cents on women's scholarships. But the participation rate
suggests that under Title IX they should be giving something
like 42 cents to men and 58 cents to women. The Department of
Education tells us that there is a disparity of just one
percentage point. You got some serious explaining to do.
I want to give you the opportunity to sort of explain to us
the disparity between the scholarship dollars that go to men
versus women at Baylor, and the participation rates of men and
women.
Judge Starr. Well, that is a very dynamic and fluid
process. So it may change from year to year. But if there is,
in fact, a disparity--and I accept what you have said, it has
to be addressed. So we have to come forward with explanations
as to why there may be a temporary disparity. We recently
created two new women's sports, with scholarships, in order to
address the disparity. So we have, for example, created
equestrian, with a number of scholarships for women. We have
created acrobatics and tumbling.
Mr. Tierney. Are you saying you believe this is a temporary
issue? You are saying this isn't a year-to-year thing? Are you
saying that with some knowledge of the fact, or are you just
guessing that is the case?
Judge Starr. Well, I don't know the specifics of those--
that specific disparity. So that is information to me. What I
do know is that the academic department--the athletic
department does have to focus on this with our Title IX
compliance officer. We have a Title IX compliance officer who
reviews all these kinds of issues to determine whether they
are--
Mr. Tierney. I am just disturbed that, you know, the NCAA's
answer to all of these issues, which most people agree ought to
be addressed, is wait for the next decade or two and we might
get around to it. And even on the Title IX questions, is yeah,
we are working on it. I think we all ought to be concerned on
that.
And Mr. Eilers, sure, what--
Mr. Eilers. Could I just share a comment? I agree with
your--and I have the same frustration. That is that is why I am
here today.
Mr. Tierney. Yes, I--
Mr. Eilers. I would like to see this implemented. And the
one thing that I didn't want to throw on the table, when we
were--when I was a student athlete at Notre Dame, we are trying
to prepare to play. We used to open up against Michigan, trying
to prepare for class. I just couldn't conceive, when this came
up, of trying to think about threatening to strike or getting
to the Friday night or Saturday morning of the football game
and not leaving the locker room because demands weren't being
met. I don't think the student athlete needs that incremental
burden, but we have got to get there on these issues--
Mr. Tierney. So apparently, they needed to take some
drastic action just to get the conversation started here with
some sincerity. So--
Chairman Kline. The gentleman's time--
Mr. Tierney. It is a good idea, I think we ought to at
least acknowledge that.
Chairman Kline. The gentleman's time has expired.
Mr. Walberg?
Mr. Walberg. Thank you, Mr. Chairman. And thanks to the
panel for being here.
I didn't participate in a revenue sport. I was in an
Olympic sport, but wrestling in high school and college,
university, for the time that I did that was probably the best
training for life that I ever had. And I did it out of the joy
of the sport. I made it by choice. Suffered four shoulder
surgeries as a result of that in later years of my life, but I
look back, and I would do it all over again.
I appreciate also the aspect that there has to be care
taken for our athletes. And I respect what you have said about
your concerns, already, on that. Mr. Muir, in your testimony
you state Stanford has taken steps to cover medical costs for
injuries, promote player safety, and researched prevention and
effects of concussions. Could you elaborate a little bit more
on those steps? And are these consistent with NCAA rules?
Mr. Muir. They are consistent with NCAA rules. We have a--
our Stanford medical team is right now doing a concussion study
on our football student athletes, our lacrosse student
athletes, our soccer student athletes. What they have told me
is this research is going to be lengthy in time. We can't today
say, well, here is how we prevent that from happening. But
certainly they are observing that. And they have a medical
mouthpiece that they put in each of the student athletes that
track where blows come from. And certainly that is going to be
an ongoing study for us, and they are leading in that regard.
Across the board in terms of the overall student welfare of
our student athletes, that is something that we hold close and
dear to us. And it is important that we try to enhance those
things as we move forward with our student athletes competing
at this level.
Mr. Walberg. Do the student athletes understand this? Are
they made aware of opportunities, considerations, programs?
Mr. Muir. They are testing. They are the ones who are
wearing those mouthpieces, they are the ones who are getting
educated on the risks that are involved and, certainly, what
the research that we are trying to do. And there is obviously
great discussion about what does the future hold. And so that
is something that they engage in, and I think it has been
worthwhile to have this leadership role.
Mr. Walberg. Well, along that line, you state that Stanford
has taken steps to protect scholarship support for students who
are medically disqualified from playing. What are those steps?
Mr. Muir. So, for example, we have three incoming football
student athletes who have been awarded scholarships. They were
not able to finish their senior year in competition. We still
honored those scholarships. We are looking forward to them
contributing once they are healthy. And we have had other
student athletes who have gotten injured during the course of
play while at Stanford that we still honor their scholarships
at the end of the day. First and foremost, we are here to make
sure that they get their degree. And we will do everything in
our power to make sure that happens, regardless of whether they
continue to play or not.
Mr. Walberg. What about Baylor, Mr. Starr?
Judge Starr. It is the same policy in place. We do, in
fact, care for our student athletes and for our football
players. If they are, in fact, injured the scholarship
continues. And we also believe we have the moral obligation to
them with respect to an injury sustained in football, even post
graduation.
Mr. Walberg. Okay.
Notre Dame, as far as you know, Mr. Eilers?
Mr. Eilers. Pardon me. As far as I know, Notre Dame is
consistent with the other testimony.
Mr. Walberg. Okay. Mr. Muir and Mr. Eilers, I would like
you to comment, as well. This year, it appears the NCAA will
revisit the stipend issue. We have talked a bit about that.
What is the major concern with the stipend issue, from your
perspective as an athletic director at a major private
university?
Mr. Muir. So the major issue, I think, is that each
institution is trying to pay up to the cost of attendance. That
is the issue that is out there. For each institution, that cost
of attendance for personal costs are different. And trying to
figure out their exact number, where we can at least try to be
equitable. The other thing that Mr. Schwarz had mentioned, as
well, is the resources that would be necessary to provide that.
Not all schools are able to meet that cost of attendance, and
it is a concern for them. Or they will have to make other
decisions and so that is a difficult one.
And that is why we spent so many years trying to figure
that out. I do feel, because of the discussion and the
dialogue, that we are closer. We realize we need to enhance
that overall experience for the student athletes, but it is
difficult from school to school since there are so few that are
truly making revenue that they are able to far exceed their
expenses with revenue. It makes it hard, makes it difficult. So
I do think we are making progress, but it is going to take a
little more time.
Mr. Walberg. Mr. Eilers?
Mr. Eilers. Yes. And anecdotally, I would just tell you I
was--my parents, I was fortunate, were able to give me out of
pocket expense money to--when I was on scholarship at Notre
Dame. My little brother was there, two years younger than me.
Chris Zorich became a college All-American and I played with my
last year at the Chicago Bears. He didn't have--he came from a
single-parent family, went to Chicago VoTech High School. Had
no out of pocket money. His mom couldn't afford it, you know.
So it came down to people--his teammates, you know, his
mentors to make sure that he could go out to dinner with us,
you know, do laundry, et cetera off campus if need be. And I
just think that is wrong.
Mr. Walberg. Yes, yes. Had my first wrestling win at
Chicago VoTech.
Chairman Kline. The gentleman's time is expired.
Mr. Byrne?
Mr. Byrne. Thank you, gentlemen. I am the former chancellor
of post secondary education for the state of Alabama. I am
sorry, Mr. Eilers. Don't hold that against me.
[Laughter.]
I am also--
Mr. Eilers. Congratulations.
Mr. Byrne.--a former labor lawyer who represented numerous
clients in front of the National Labor Relations Board, dealt
with the National Labor Relations Act on a number of occasions.
So this issue fascinates me because I have dealt with it both
ways. Our two-year colleges, which is what the post secondary
education department in Alabama deals with, does have athletic
programs. In fact, we had a golfer at Faulkner State Community
College that is in my district, named Bubba Watson. Bubba went
on to the University of Georgia, but he started at an Alabama
two-year college. And we are very proud of him.
But we are also proud of all of those student athletes. And
the vast majority of them will never do what Bubba does, but we
hope that they come to us and get a good education. Now, Mr.
Muir, Judge Starr, you know when we are dealing with students
in that environment they bring their life issues with them.
They may be students, they may be athletes, but they are also
young people and they have life issues. And we have coaches and
counselors that deal with them on stuff that happens on the
field and stuff that happens off the field. You can't take them
apart. They just come together like that.
And I guess what bothers me about this whole issue--and I
want to share the concerns I have heard about the NCAA, by the
way. I see that as a separate issue, frankly, and I think we
are trying to use the wrong tool to get at some of those NCAA
issues. What concerns me is, is that if students organize, and
we have to deal with a union representative instead of the
student, what does that do to the obligation, the
responsibility--I know you all feel it from your institutions--
to deal with these student athletes with their life issues and
the stuff that is not directly involved with whatever they are
doing on the field. What does that do to that?
Judge Starr. I think it would be very disruptive. You are
absolutely right, Congressman, that the relationship is a very
individual relationship. And it is not just the coach and the
coaching staff. It is that entire battery of support services,
it is that tutor. But it is also the faculty member, it is also
the representative to the student athletic council. At Baylor
we have a very vibrant chaplaincy program. So there is the
spiritual dimension, as well. So trying to channel everything
into, at the age of 18 to 22, a set of labor law issues of
wages and terms and conditions and so forth, seems to be very
artificial and arbitrary and not serving the ultimate interests
of the individual student athlete.
Mr. Byrne. Mr. Muir, do you have a vantage point on that?
Mr. Muir. Yes, I do. I just think about the relationships
that we build with young people. And it starts, obviously,
prior to coming to college. We start early now. It is becoming
sophomore year, junior year of high school; obviously, when
they get to be seniors. And that carries through. Not only the
four years or five years that they are on campus, but we want
them to have a relationship with us, actually, once they
graduate and have the degree. That relationship is so important
to us.
And yes, we do have students who have other issues that
are--that need to be dealt with, and how do they cope and
manage. But that is--they feel open and for the most of--the
majority of them, that they are able to come to someone here in
the university setting--whether it be a faculty member or a
coach, an administrator. And that is the beauty of the college
environment. And I think that is really important for us to
keep in mind as we move forward.
And certainly there are, as we noted, there are many issues
that need to be addressed. And I think we are going to work our
way to getting those done. It is always evolving.
Mr. Byrne. Well, I would ask this question to legal counsel
here. I mean, you heard the vantage point of people who are
dealing with these student athletes on things that go far
beyond what happens in their actual athletic work, if you want
to call it work, in this environment. Is the NLRA the right
tool to deal the issues that people seem to have with the NCAA?
Sir, let me just say this. NCAA doesn't have anything to do
with two-year colleges. So some of--we start creating a bigger
definition of employee, it is going to affect a whole lot of
people, not just people who are governed by the NCAA.
So is the NLRA the right tool to do this?
Mr. Livingston. Well, Mr. Byrne, that is a great question,
and one of the reasons why I don't think it applies. Under the
NLRA, all employees have certain rights. And the policies that
Judge Starr and others have talked about, based on recent NLRB
decisions they would clearly violate them. A coach is--requires
his players to be a Facebook friend. The schools monitor
Facebook postings. They prohibit media interviews.
Recent board cases have made it clear that violates the
rights of any employee, whether they are in a union or not. And
so at all 17 schools the framework that we are talking about
likely already violates the NLRA. It is just not the
appropriate tool.
Chairman Kline. The gentleman's time has expired.
On my agenda here it says we are to close the remarks, so I
am going to yield to the senior Democratic member, Mr. Miller,
for his closing remarks.
Mr. Miller. Thank you very much, Mr. Chairman. I think this
is a very important hearing. You know, America is in the throes
of celebrating, on a daily basis, socially and economically,
every way possible, entrepreneurs and those who take risks. The
list of grievances that these players presented is a list of
grievances that players could have presented five years ago and
10 years ago, across the college community. But they haven't
been addressed. These players are put in the position of being
on the edge all of the time; scholarship, no scholarship, play,
don't play, classes, no classes all of the time.
That is a very interesting place to keep your employees
that you care so much about. I think these players might play
better if they had some more certainty in their life. But the
NCAA doesn't let you do that as a university. We have some
remarkable examples of universities here and programs. You know
you are not typical across the board of high-stakes football in
this country. And we know the athletes are not typical. And the
fact is, you are graduating people, but we also have clusters
of athletes that go to certain classes for certain reasons that
may not have--may not apply toward their graduation so they are
short but they stay eligible by taking the classes.
I am not holding you responsible, but that we know this
landscape. That is why the Knight Commission was set up, to
look at the landscape. No easy critics out of the industry. But
the fact of the matter is that this landscape has changed
dramatically. I have been in Congress long enough to know that
when I have seen really tough issues on academic sides, where
they thought that Congress might get involved in accreditation
or what have you, very often you don't meet the college
president. You meet the college coach.
And we know that the education journals, sports journal
shows--are constantly debating this question who is the most
powerful person on campus, the president or the coach? We know
all hell can be paid for the mishandling of the hiring or the
firing of a coach. These concerns that these young men were
willing to take a risk on exist on every campus whether or not
you have the security of a scholarship, for how long; whether
or not you are going to have health insurance; whether or not
you are going to--what is going to happen with your injuries if
you lose your scholarship.
Stipends, transfers--we have been over this. We have been
over this and over this and over this. I think I held the first
concussion hearings. No--this is not proper for public
discussion. This is a sport, this is volunteers. People play.
Until they started to see the extent of the damage done. I
worked with many NFL coaches and many NFL players. We couldn't
get to first base. I had coaches come and tell me the documents
are here, we know what has taken place here. Well, finally the
Players Association went to court, and we know the rest is
history.
And that is just the beginning. But the fact of the matter
is, the determination was made that it was better to run the
organization in the manner in which the owners wanted to run it
than to deal with these issues. And I grant you, it could
change the game. It has already changed the viewership. It has
changed the way TV portrays it. They don't rerun those big hits
because the audience has a different reaction today when they
see that hit. They know that is a damaging hit. They know there
are consequences to that.
But before, that was highlights. But highlights now are a
liability. So we can have all the parade of horribles here
about what could happen if there is unionization. Why don't we
think about what could happen if you took care of the problems
of these student athletes. And if the universities got back in
control of this program and not the NCAA, not the conference. I
understand there has got to be rules and regulations. But, you
know, we see arbitrary decisions made all the time by the NCAA.
Mr. Courtney raised the issue.
I remember talking to sports journalists about the issue:
why are students who had nothing to do with the infraction
losing their rights to playoff games? You know what that means
if you think you are going to the NBA or you are going to the
NFL and you can't get in the playoffs, where everybody is
focused on your performance? That is a huge punishment. To
what? That they are upholding some morality of their vision of
football, and they are going to show that they are really tough
on this school? No, they were tough on a bunch of students who
weren't there when the infraction took place.
So I think there is a lot to think about on the campuses.
We spend a lot of time in this committee about higher ed and
the approaches we take. And I think that you, you are here
because you are leaders in this field. You are not immune from
this. This is the Stanford Daily that I asked to be put in. The
list of easy classes that nobody knew exist. Everybody said
didn't happen. And yet professors said, well, it upped my
attendance. I am glad it was on there. And they said no, they
come here to--they major in eligibility.
I guess the Senate is going to hear from Ms. Willingham on
North Carolina. I think--I don't know if she is here or not. I
think she was going to--there you are. I think the Senate--
Senator Rockefeller and others are going to hear from this. And
you all know we have been through these scandals before. So you
can rail against the unionization. Like the NFL, like the NBA
you better address the problem. This is college sports. Not
NCAA, it is college sports.
And I appreciate--I stood on the sidelines. I was so proud
there--happened to be with a big donor--of USC-Notre Dame in
Los Angeles, and then in South Bend. Most exciting moment of my
life. I never knew it could be that noisy. And I played a lot
of football, but I didn't play at that level. So we know the
influences here. We know the influences here. They are student
athletes. I don't think you would treat the other students like
this on campus.
You know, I think somebody better get and take control of
this situation again. And in most of the journals I read the
president is losing in this war against the coaches for the say
and the standards on campus. Mr. Schwarz is right. This is like
that cab in Compton, California. It is always coming, but it
never arrives. The NCAA just can't make these decisions, and
yet--so we get these arbitrary actions against institutions and
against the students and, in some cases, against the coach now
and then.
There is a lot to think about here. I have been here 40
years. I have watched a lot of people deny the problems and
blame--and go after the symptom which, in this case, is the
decision to join the union. A rational decision by these young
people. There was no other outlet for them. No other outlet as
there wasn't for the people who proceeded them. So I wouldn't
be so concerned about whether or not they are going to vote
they are not going to go out on the field on Saturday. That is
not the makeup of these young men, you know.
But I remember talking to Bobby Knight when we decided--
when the networks decided they needed a mid-week game. And now
we have it, you know, for different--depends on what conference
you are in, what day we--how many days of school you miss. You
can keep defending it. I would work on changing it.
Thank you very much, Mr. Chairman, for this hearing.
Chairman Kline. I thank the gentleman.
I am going to thank the witnesses. A lot of expertise, real
knowledge. I appreciate everything that you had to offer. Quite
a diversity in experiences and positions here. Somebody who was
a top-level college athlete, and then went on to play in the
NFL. Has very strong feelings and opinions about these issues,
and has pointed out very eloquently, Mr. Eilers, that we have
got problems out there, as Mr. Miller, again very passionately,
pointed out that need to be addressed.
What brought this hearing together was the actions of a
regional director of the National Labor Relations Board, who
suggested that these athletes are employees and therefore
could, if they chose, vote to join a union. And so we explored
some of the possible downsides of that issue, and we heard from
witnesses here that talked about how would this deal with class
attendance and practice times, attending games, how many games.
What about walk-on players, what about universities who are
public and don't fall under the National Labor Relations Act.
And a host, frankly, of potential problems.
And we wanted to get out that, and I very much appreciate
the testimony of the witnesses today as we start to explore
that. I don't think there is a person on this committee that
doesn't agree that we need to address some of those very issues
that we talked about and, again, that Mr. Eilers' talked about
so eloquently. The question is, is unionization of some sports,
some players, and some schools the appropriate tool to get to
that end. I think I have been very clear to say that I don't
think that it is.
And we need to then focus on, I think, all of us--perhaps
in Congress and certainly those of you in the field, as it
were, as athletic directors and college presidents and those
concerned--to do the sorts of things that Mr. Miller was
talking about; that we address these issues. I just don't
believe that the sporadic unionization, and no, I am not
arguing for a bigger bargaining unit there, Mr. Miller. I just
think that the law is the wrong law, it is the wrong tool to
use here.
Okay. There being no further business, the committee is
adjourned.
[Additional Submissions by Mr. Miller follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Additional Submissions by Mr. Muir follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Additional Submissions by Mr. Starr follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 12:16 p.m., the committee was adjourned.]
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