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It’s time for a new legal fiction

Players can end the decades of institutional sclerosis that has plagued college sports

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Ball State v Illinois

All hell has broken loose in high level college athletics. As the Big Ten and Pac-12 stand ready to cancel the season, informal players organizations derived from hashtags, such as #WeAreUnited and #WeWantToPlay, have come to take co-ownership of the headlines.

As it becomes readily apparent that players want to play, coaches want to coach, and, of course, fans want to cheer, University Presidents and Conference Commissions are unwilling make the changes necessary to allow this to happen during the Pandemic.


Covid-19 brings truth to the table

One of the striking features of this pandemic has been its ability to bring a dose of reality to the conversation. As a society, we have had to ask questions about what is essential in our lives. Well, it turns out that some of the essential people that keep the profit generating machine going are those whose work we have taken for granted as a society — such as teachers, child care workers, and food distribution workers. When it comes to college sports, these essential workers are the players.

College Football and Basketball players are essential

Covid-19 has rapidly forced upon college administrators the difficult conversation they long evaded: the internal conflict between reality and the legal fictions of student-athlete and amateurism. These fictions and notions were created a lifetime ago for the self-serving purposes of a select few.

Today, much of the NCAA’s moral authority—indeed much of the justification for its existence—is vested in its claim to protect what it calls the “student-athlete.” The term is meant to conjure the nobility of amateurism, and the precedence of scholarship over athletic endeavor. But the origins of the “student-athlete” lie not in a disinterested ideal but in a sophistic formulation designed, as the sports economist Andrew Zimbalist has written, to help the NCAA in its “fight against workmen’s compensation insurance claims for injured football players.”

But, as callous and as removed from reality as these legal fictions may be, they have been baked into the pysche of college sports. This pysche is not only baked into how college administrators and players deal with each other, they have also been baked into how fans hold their allegiance to college sports teams.

Nebraska v Illinois Photo by Michael Hickey/Getty Images

College teams are a lot of different things at once: they are alma maters of proud graduates, they are rooting interests that began in childhood and get passed down from generation to generation as cultural heirlooms, and they are regional pride. They are also larger than life personalities in coaches and players who create memories that belong in a treasure chest of shared identity.

But now, with the pandemic, the players who create these memories and the universities that hold these memories in their halls, are in direct conflict. The conflict stems from the natural nexus between the labor — in college athletes — and the capital, which are the universities.

Now, do not get me wrong. I understand that universities are non-profit entities whose profits are not distributed to external shareholders. The profits of college sports are distributed internally to pay for salaries, facilities, fund olympic sports, and, in the case of Power 5 universities, to be distributed back to the academic wing of the university.

Boston College Unveils $52.6 Million Indoor Practice Facility Photo by Jessica Rinaldi/The Boston Globe via Getty Images

Football and Basketball with their lucrative TV contracts are the sports that fund the entire enterprise. With Covid-19 creating complications not seen before in our lifetime, playing these sports becomes perilous from a public health standpoint and from a player and coach health standpoint. All of a sudden, the cat is out of the bag as to how essential these football and basketball players are to the entire enterprise.

So, with leverage at their disposal and with the health risk of playing being as consequential as ever, players are standing up to universities and demanding more. As evidenced by #WeAreUnited and #WeWantToPlay, however, the players are perfectly content to keep feeding this beast, but they want to have a larger say in the matter.

Unfortunately, with Covid-19 bringing reality to their doorstops, university presidents are unwilling to grasp the reality that college athletes, specifically football and basketball players, should be allowed to organize and collectively bargain their way onto the field.

This unwillingness is nothing more than a deadly sclerosis that has plagued numerous American institutions, not just universities, to the point where they have difficulty maneuvering in the face of societal and systemic collapse.


In a recent book, New York Times columnist Ross Douthat wrote about institutional sclerosis in a book title “The Decadent Society”.

According to Douthat, the US — and really the entire Western world — is stuck in a kind of cultural doom loop. In many ways, Douthat says, we’ve become victims of our own success and are now locked in a state of malaise, in which our culture and politics feel exhausted.

Douthat’s definition of a “decadent society” is that we’re trapped in a stale system that keeps spinning in place, reproducing the same arguments and frustrations over and over again.

Unfortunately for players, coaches, and fans, college sports are on the brink of collapse because university presidents are stuck in endless loops of thought and rhetoric on outdated legal fictions of amateurism and student-athlete. If university presidents could move beyond these legal fictions and create new ones, then they would be able to take the necessary steps to provide the protections for their athletes that the NHL, NBA and MLS have provided by putting their players in bubble.

But university presidents would rather double down on systemic self-preservation and let the ship sink than admit what we known all along: that we need a new legal fiction that accounts for the reality that college athletes, specifically football and basketball players, are not regular students.

Nothing will change, however, until an administrator leads the charge from the university side. So, we are calling on Josh Whitman to end the decadence and to help those above him come to terms with reality.

Nebraska v Illinois Photo by Michael Hickey/Getty Images

As a former player turned administrator, no one is better suited — from the University side — to lead the charge to a new legal fiction than Illinois Athletic Director Josh Whitman.