By Jonathan Mahler
So the National Labor Relations Board hearings on the Northwestern University football team's proposal to form a union have just gotten under way, and we already have our first howler.
Here it is, from the mouth of Northwestern's vice president for university relations, Alan K. Cubbage: "We do not regard, and have never regarded, our football program as a commercial enterprise." OK, Alan, but you may be the only ones who don't. How, exactly, is an entity that sells tickets to its events - not to mention the national TV rights to broadcast those events - not engaging in commerce?
Not surprisingly, the claim - that big-time college sports do not represent commercial activity - has been consistently rejected by the courts. It also directly contradicts various statements made by the National Collegiate Athletic Association and its current and former officials.
Consider, for instance, a strategic report written in 2011 for the University of California at Davis by ex-NCAA President Cedric Dempsey. Davis had recently moved up from Division II to Division I, and the partly related fallout - specifically, the decision to cut some non-revenue-generating sports - had kicked up controversy on campus. Dempsey, who had become a consultant after leaving the NCAA, was hired to explain to everyone how the world of big-time college sports works. As he put it, Division II still uses an "educational model" that relishes "the history of noble amateurism." Division I, by contrast, is run on more of a "business model," with schools investing resources in the sports with the greatest potential to generate revenue. Hmmm.
Dempsey's successor at the NCAA, Myles Brand, put an even finer point on it. In a 2006 speech to NCAA members, Brand explained that "commercial activity" - like selling broadcast rights - is mandated by the "business plan." The failure to "maximize revenues," he said, would be "incompetence at best and malfeasance at worst."
It was just one of many occasions that Brand used to push the NCAA to embrace commerce - or to more enthusiastically embrace its commercial roots, which actually predate the existence of the organization itself. The very first intercollegiate competition, a regatta between Harvard and Yale on Lake Winnipesaukee in 1852, was the brainchild of the superintendent of the Boston, Concord and Montreal Railroad, who figured it would help fill his cars. It did. Before long, the Harvard-Yale regatta was an annual event to which both schools were selling tickets.
From these humble beginnings, big-time college sports were born. Now, a handful of collegiate football players wants a seat at the table where workplace conditions are being discussed. And the school that's trying to deny them that seat apparently can't come up with a more compelling argument than the self-evidently stupid claim that a multi-billion-dollar industry is not a commercial enterprise.