Johnny Smith

He was a student of history, but most people knew him as the star quarterback of the football team.

In the summer of 2013 Kain Colter, the twenty-one year old starting quarterback at Northwestern University, enrolled in a course that examined the social and political history of labor in America since the nineteenth century. His instructor, Nick Dorzweiler, challenged the students to reflect on how the meaning of labor has changed over time and what work means to them as citizens. After visiting a Chicago steel mill, Kain began considering the role of unions in professional sports and wondered why college athletes did not have one, too.

It was question that made him consider the value of his own work as a college athlete and the legitimacy of the National Collegiate Athletic Association (NCAA). After the football season ended, Colter organized a press conference at the Chicago Hyatt Regency. Standing behind a podium, dressed in a navy blue suit and a yellow tie, a crowded room of reporters and photographers eagerly awaited his announcement. Colter, along with Ramogi Huma, a former UCLA linebacker and president of the newly formed College Athletes Players Association (CAPA), made a statement that directly challenged the concept of amateurism and the very foundation of the NCAA.

Earlier that day, January 28, 2014, Huma visited the regional office of the National Labor Relations Board (NLRB), where he filed a petition on behalf of Northwestern football players who sought union representation and employee status under the law. Although the NCAA defined the players as “student-athletes,” an ambiguous category created to avoid any suggestion of employment, Colter intended to challenge the athletes’ legal status. Two days earlier, he had called a players-only meeting where he and Huma educated the Northwestern team about the advantages of forming a union. Under the current system, they argued, the NCAA exploited the labor of college athletes while universities generated billions of dollars from football and men’s basketball games. If they filed a petition with the NLRB, the United Steelworkers would provide financial and legal support. But in order to schedule a hearing with the NLRB, the team needed 30 percent of the players to sign union cards. At the end of the team meeting, Colter and Huma counted the signed cards. Almost every player had signed his name.

Colter told the press that the players were not demanding salaries, although they wanted the ability to accept compensation from commercial endorsements without penalty. Currently, the NCAA prohibits college athletes from receiving monetary benefits because it would violate the amateur code. The players’ greatest concern, however, was having a voice that would allow them to secure basic labor rights. When the NCAA punishes athletes for violating its rules, they are deprived due rights. “Right now the NCAA is like a dictatorship,” Colter said. “No one represents us in negotiations. The only way things are going to change is if players have a union.” Forming a union, he contended, would allow them to negotiate for reduced contact drills during football practice, better health care for current players, and ensure continued medical coverage for sports-related injuries after their scholarships expired. Colter also insisted that more should be done to improve graduation rates, such as guaranteeing scholarships for four years.

Immediately after the press conference, the NCAA’s Vice President for Legal Affairs Donald Remy released a statement that rejected Colter’s claims. “Student-athletes are not employees within any definition of the National Labor Relations Act,” he wrote. Northwestern’s Athletic Director Jim Phillips agreed, saying “Northwestern believes that our student-athletes are not employees and collective bargaining is therefore not the appropriate method to address these concerns.” A players’ union, he maintained, would undermine “the purpose of college: an education.”

Colter disagreed. There was no evidence that forming a players’ association would compromise any educational mission. During his labor studies class he wrote a paper about the legal status of college athletes and the authority of the NCAA, which he viewed as a cartel. Of course, he was not the first person to make this argument. Historians, economists, and lawyers have also described the NCAA as a classic cartel that employs the labor of college athletes without providing a competitive wage. Essentially, the NCAA’s member institutions—all competitors—have agreed to restrict compensation for college athletes. For decades the NCAA has maintained that college athletes are amateurs, a concept that disguises how the member schools have suppressed the value of its labor force—the players. In the entire enterprise of intercollegiate athletics, only the athletes are restricted in their compensation. Everyone else involved in the business of commercialized college sports—NCAA officials, athletic directors, conference commissioners, coaches, corporate sponsors, consultants, apparel manufacturers, media members, and others—benefit from a free market. Furthermore, the “student-athletes” are the only group of students on campus who are told that they cannot be students and employees. Athletic departments regularly hire students as assistant trainers, equipment managers, marketers, ticket sellers, and video producers. Yet no one argues that they should not get paid since they are receiving an education, too. No one tells a student on a music scholarship that she can’t sign a recording contract or that an English major can’t sign a publishing contract.

Based on the principle of amateurism, the NCAA emphasizes that college football players are students first and foremost. The NCAA rulebook states, “Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be primarily motivated by education and by the physical, mental, and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.”

Are college athletes simply students pursuing an avocation? Are they truly free to prioritize their education over what the NCAA calls a hobby? If so, then why are college athletes required to miss classes and exams to practice, play games, and travel to competitions? When do college athletes skip athletic events to attend class? And if college athletes have no claim to the revenues produced by football and basketball games as the NCAA maintains, then why does the NCAA require them to waive their rights to proceeds from any sales based on their athletic performance?

For more than six decades the NCAA has defined “student-athletes” as amateurs so that its member institutions could avoid paying workers’ compensation to injured athletes. The origins of the term can be traced back to a Colorado Supreme Court case, University of Denver v. Nemeth (1953). In 1950, Ernest Nemeth, a football player at the University Denver, suffered an injury during spring practice. He filed a claim against the university alleging that he was hired by the school to play football and that his injury was a result of his employment. Three years later, the Colorado Supreme Court upheld a ruling by the state Industrial Commission that Nemeth was indeed an employee as defined by Colorado’s worker’s compensation statute. The Court determined that Nemeth’s compensation for playing football—an athletic scholarship, housing, meals, and a campus job—was contingent upon his ability to perform on the field, and therefore the university was obligated to provide workers’ compensation for his football-related injury.

After the Nemeth case, the NCAA recognized that its member schools were vulnerable in worker’s compensation cases. In response, the NCAA manufactured the “student-athlete” label. Walter Byers, then the Executive Director of the NCAA, later wrote, “we crafted the term student-athlete and soon it was embedded in all NCAA rules and interpretations as a mandated substitute for such words as players and athletes.” Soon the press began using the term, inscribing it into the national consciousness. By 1956, when schools first started offering recruits scholarships solely for their athletic ability, the New York Times described football and basketball players as “student athletes.” In constructing the “student-athlete,” the NCAA successfully convinced fans, sportswriters, and players to embrace the mythology of amateurism.

The debate over the legal status of college athletes continued into the late 1950s and 1960s. In 1957, four years after the Nemeth decision, the Colorado Supreme Court was again asked to evaluate the relationship between scholarship athletes and their schools. Two years earlier, during the kickoff of a game between Fort Lewis A&M and Trinidad Junior College, Ray Dennison died from a brutal collision. A twenty-six year old Army veteran, Dennison left behind a wife and three small children. His widow, Billie, sued Fort Lewis for death benefits. After the Industrial Commission of Colorado granted death benefits to Billie, the State Supreme Court reversed the commission’s award. Unlike Nemeth, in this case the court ruled Dennison’s scholarship agreement with the school was not dependent upon him playing football. Without “any contractual obligation to play football,” the court found that “the employer-employee relationship does not exist.” Fort Lewis A&M, the Court determined, “was not in the football business” and the school derived no benefits from organizing football games.

But athletic departments were already in the football business. In 1957, the same year that the Colorado Supreme Court heard the Dennison case, a special faculty committee investigating the status of athletics at Ohio State argued that college football players should share in the profits generated by their labor. The committee acknowledged that faculty had lost influence over athletics, ceding control to administrators and the Board of Trustees, who increasingly gave the athletic department greater autonomy to operate like a business. Aiming their criticism beyond Columbus, the committee maintained that the universities should cease pretending that college football was an amateur endeavor. Instead, they called for an end to the hypocrisy of college sports since many programs already paid players under the table and the coaches treated them like employees. “You don’t attract the kinds of crowds it takes to fill these arenas unless you pay a lot of attention to your job—and the job, to some extent for some of these boys,” coach Woody Hayes declared, “is football.”

In 1963 the NCAA became increasingly concerned that the courts would view college athletes as employees. Three years earlier Edward Gary Van Horn, a scholarship football player at Cal State Polytechnic College, was one of sixteen players killed in a team plane crash. When his widow filed for death benefits under the state’s compensation law she claimed that he was an employee who died on the job. But the California Industrial Accident Commission denied her claim on the basis that her husband was not an employee of the school. However, the California District Court of Appeals annulled the decision. In addition to his athletic scholarship, Van Horn received a quarterly check for living expenses and rent money. Therefore, the court ruled that the college had entered into a contract with Van Horn, compensating him with a scholarship in exchange for his football services. The court thus established that a college football player could be a student and an employee.

The following December the NCAA responded by altering the language of athletic scholarships, crafting an agreement that compelled athletes to accept the NCAA’s definition of amateurism. The scholarships now read: “This award is made in accordance with the provisions of the Constitution of the [NCAA] pertaining to the principles of amateurism . . . .Your acceptance of the award means that you agree with these principles and are bound by them.” Although the NCAA insisted that a scholarship was not contingent upon athletic performance, in 1973 its member schools adopted legislation that reduced grants-in-aid from four years to one. This meant that an athlete’s financial aid was increasingly dependent upon his athletic performance and his relationship with the coach. If the player did not fulfill expectations, a coach could terminate his scholarship, a practice that made college athletes more like professionals playing on a contract.

For decades college football coaches have treated players primarily as athletes, not as students. The coach’s primary responsibility has always been to win games, and that fact has influenced how coaches have managed the players under their control. In 1974 Paul “Bear” Bryant, arguably the most successful and famous college football coach in history, wrote in his autobiography, “I used to go along with the idea that football players on scholarship were student athletes, which is what the NCAA calls them, meaning student first and athlete second. We were kidding ourselves, trying to make it more palatable to the academicians . . . At the level we play,” the Alabama coach added, “the boy is really an athlete first and a student second.”

“It’s a job,” Kain Colter said. “There’s no way around it—it’s a job.” On February 18, 2014, during a NLRB hearing in downtown Chicago, Colter testified in a federal courtroom that college football players were employees. Based on testimony from Colter, Northwestern coach Pat Fitzgerald, and the school’s athletics staff, the NLRB would determine if the players qualified as employees under the National Labor Relations Act. Colter and the CAPA argued that the players were employees because they were compensated with a scholarship, which Northwestern valued at $76,000. Colter testified that he and his teammates worked according to the day-to-day, hour-by-hour schedule created by the coaches. Using the team’s travel itinerary, he explained that during one road trip to Ann Arbor, Michigan, the players spent nearly twenty-four hours travelling, preparing, and playing the football game, even though the NCAA limited athletic participation to twenty hours per week. Yet somehow the NCAA calculates time related to game events as three hours no matter how long the players spend traveling, meeting with coaches, and competing. This time commitment, coach Fitzgerald acknowledged, was “a full-time job.”

On March 26 NLRB regional director Peter Ohr delivered what seemed to be a landmark ruling: the Northwestern football players qualified as employees under the law, and they could therefore vote on unionizing. Persuaded by the enormous revenue the players produced for the school, Ohr noted that the players spent forty to fifty hours per week on their football “duties,” which “is more hours than many undisputed full-time employees work at their jobs. It is also many more hours than the players spend on their studies.”

Ohr’s decision sparked a backlash against Colter. Northwestern alumni and fans railed against him for tarnishing the program that gave him so much. Fitzgerald pressured the team to vote against unionizing, arguing that it would do more harm than good. Colter noticed that as the players debated the upcoming vote the team became divided along racial lines: most of the black players favored the union; the white players did not. On April 25, 2014, the players conducted a private vote, but the results were never made public since Northwestern requested that the NLRB review Ohr’s decision.

More than a year later, on August 17, 2015, the five-member NLRB panel declined jurisdiction in the Northwestern case. Although the NLRB holds authority in the private sector including universities like Northwestern, it has no oversight over Northwestern’s “primary competitors”: mainly the public schools in the Big Ten Conference, which are subject to state law. Furthermore, the board pointed out that 108 of the 125 national programs that compete in the top tier of Division One football are public schools. And since the NLRB cannot regulate all schools, it would not regulate Northwestern. Yet the Board’s decision did not address the merits of the players’ argument. Nor did the NLRB ruling end the debate: should college athletes be considered employees under the law?

Ultimately, the NLRB’s decision left the Northwestern players with no recourse. Colter’s efforts made a lasting imprint on the national consciousness, however. He challenged everyone involved in college athletics—coaches, players, administrators, fans, and media members—to confront important questions about labor, economic rights, and the values of higher education. His leadership forced the NCAA to evaluate the gap between its mission and its practices. Under greater scrutiny, in January 2015 the Power Five Conferences—the Big Ten, Big Twelve, SEC, ACC, and Pac Twelve—mandated four-year athletic scholarships and paying “cost of attendance” stipends that covered more than tuition, room and board, and meals. For Colter, this was not quite enough, but an important start.

Although he has signed a professional contract with the Los Angeles Rams, Colter remains active in CAPA. In late March 2016 he attended the College Athletes’ Rights and Empowerment Conference at Drexel University, a meeting of academics, journalists, and lawyers. Colter appreciated the lively discussion among the panelists. But he noticed that the people who had the most at stake in the future of college sports—the athletes—were not present. The problem, he insisted, is that college athletes are bombarded with misinformation from coaches, administrators, parents, and the media. Yet his experience affirms the importance of studying the past. Kain Colter’s story offers a lesson to college athletes: if they understand how the NCAA has imposed amateurism upon them, perhaps then they will organize a movement that defies the status quo.

Johnny Smith is an Assistant Professor of History at Georgia Tech. He specializes in the history of American sports. He recently published Blood Brothers: The Fatal Friendship Between Muhammad Ali and Malcolm X (co-authored with Randy Roberts).