Construction Literary Magazine

Fall 2020

When Kevin Ware Went Down

When Kevin Ware Went Down

Photograph via the Baltimore Sun

It’s hard not to feel a sense of shock and sadness at an injury like the one suffered by Kevin Ware, during the Duke-Louisville basketball game, in the Elite 8 round of the NCAA’s annual national college basketball tournament. Ware, a guard for the Louisville Cardinals, was attempting to block a shot by Duke’s Tyler Thornton, when Ware fell backward, shattering his right leg in two places. Bone was protruding out of his skin. After his team’s emotional victory against Duke, Louisville Coach Rick Pitino confirmed that Ware’s post-injury surgery was successful, though Ware faces an extended road to recovery.

Given these circumstances, one would expect that the last concern on Ware’s mind, as he seeks to recover from this devastating event, would be losing his athletic scholarship, and potentially being handed a hefty bill for his medical expenses. After all, Ware was a sought-after player when he was recruited out of high school in Rockdale County, Georgia, and offered scholarships by the University of Louisville. However, a little-known fact about college athletic scholarships, is that they can be withdrawn at the discretion of a university. Scholarships are not necessarily mandatory, four-year commitments by a university to a student athlete; rather, thanks to NCAA rules, athletic scholarships are treated as commitments that can be withdrawn after one, two, or three years, as soon as a coach makes a decision that he no longer wants to offer a player a scholarship.

Thus, if a player were offered an athletic scholarship while in high school, but were then to suffer a serious injury, his scholarship could be withdrawn. Now, suppose that a player were recruited by a coach who is later fired by a university. A new coach could decide that the formerly recruited player doesn’t fit his style of play (for example, a defensive-minded basketball coach might decide that a shooting guard recruited by a prior coach shoots the ball too often, and does not make enough effort as a defender), and so could dismiss such a player. As Josh Levin noted in Slate: “Coach doesn’t like you? He’s free to cut you loose. Sitting the bench? You could lose your free ride to a new recruit.”

Even seemingly modest attempts to expand the protections offered to student athletes, have met furious opposition from universities. In 2011, the NCAA Division I Board of Directors approved a proposal to permit guaranteed multiyear scholarships, that is, to allow a school to offer scholarships that could not be revoked by coaches on a yearly basis. In early 2012, schools opposed to this decision sought to have it overturned: 205 of 330 schools, a solid majority, voted to overturn the NCAA ruling, just a couple votes shy of the needed 207 votes.

[pullquote_right]Athletic scholarships can be withdrawn as soon as a coach no longer wants to offer one to a player.[/pullquote_right]

Why were schools so enthusiastic to overturn a rule that would provide greater discretion in offering multiyear scholarships? Allen Sack, a longtime NCAA critic, and author of The Counterfeit Amateurs, a highly acclaimed work on how college athletics became big business, believes that since some universities will choose to offer multiyear scholarships, student athletes might feel more comfortable enrolling in such institutions, and thus, schools with multiyear commitments will be more likely to recruit talent, and thus enjoy a competitive advantage. This could then incentivize more universities to actually offer multiyear scholarships, and many schools, Sack argues, don’t want to offer such scholarships, preferring the flexibility of being able to discard players at will.

In his Slate piece, Levin notes that while some major schools and athletic conferences, such as the Big Ten and football powerhouses Auburn and Florida, have committed to offering multiyear scholarships to their players, other major universities, like LSU and Alabama, opposed multiyear scholarship rules. At the University of Alabama, winner of 15 national championships in football (including in 2009, 2011, and 2012, under Coach Nick Saban), during the 2010 and 2011 seasons, more than 20 players either left the program by choice, or were forced out. While some of these players were academically ineligible, and others transferred to other universities (though possibly under the threat that their scholarships would not be renewed), at least three players had their scholarships outright revoked).

Additionally, a Wall Street Journal investigation found that between 2007 and 2010, Saban offered players a medical “scholarship” at least 12 times. This scholarship allows players who were injured to maintain their financial aid, but they are not allowed to play football (or another sport) with the team any longer. According to interviews with players, in at least three instances, a player was healthy enough to play after returning from an injury, but was encouraged to take a medical scholarship due to reduced athletic performance; that is, Saban was allegedly using the medical scholarship as a means to rid his team of less capable athletes. Since college football teams receive a limited number of scholarships (85 per team per year at most Division I programs), a team has an incentive to shift underperforming players off the roster.

Thus, the medical scholarship has in effect become a tool for implementing quality control of student athletes. Such an approach seems to fly in the face of arguments that college athletes are “amateurs” or “students first.” While it is positive that these young men didn’t lose their financial aid, it is difficult to argue that a college athlete is acting as an amateur or non-professional when his athletic scholarship can be revoked, and he can be booted from a team’s roster, a rather severe consequence for reduced athletic performance. Forcing players onto medical scholarships, or, even worse, revoking their scholarships outright, appears more akin to the NFL’s policies, which allows teams to cut players and thus fulfill only a portion of their financial obligations to players under a contract.

[pullquote_left]Had Kanuer’s ailments been covered by the university, she would have paid just a $1,000 deductible. Instead, she was left her with $80,000 in bills and $55,000 in debt.[/pullquote_left]

Not knowing whether one will enjoy an athletic scholarship throughout one’s tenure in university must be harrowing enough. However, college athletes also have to worry that, due to unclear and inconsistent rules regarding medical coverage, they might be saddled with a substantial bill for medical expenses resulting from injuries that occurred while playing college sports. A 2009 New York Times investigation found that there are several mechanisms through which students are either not covered, or suffer from inadequate medical coverage. In some cases, student athletes, like many of their non-athlete peers, are covered under medical plans initiated by their parents, but these plans often carry restrictions on injuries that occur while playing varsity sports, as well as injuries that occur outside of their parents’ home state.

In other cases, athletes might enjoy medical coverage from their university, but disagreements over the nature of an injury lead to students being only partially covered for the harm they suffered. One of the more egregious instances of this can be seen in the case of Erin Knauer, a member of the crew team at Colgate University as a walk-on. Knauer experienced considerable pain during a workout (during the same time that she was suffering from a cold), which led to her being hospitalized twice during a one month period, and which required further physical therapy for healing. Knauer was diagnosed with postviral myositis, a muscular inflammation, and Colgate officials claimed that this was an illness, rather than an injury, and so Knauer would be responsible for her medical bills. Other experts contested this diagnosis, arguing that there could be multiple causes for Knauer’s medical problems, especially given that she was already suffering from a cold at the time she experienced pain during her crew workout. If Kanuer’s ailments had been covered under the athletic insurance provided by the university, she would have paid just a $1,000 deductible, and no other medical bills; instead, she was forced to use her student health plan, which ultimately left her with $80,000 in bills and $55,000 in debt. Knauer was forced to work two jobs in order to pay these bills, and has found herself hounded by bill collectors.

It is tempting to dismiss Knauer’s situation as a unique instance, since she was a walk-on athlete at a smaller school. However, the case of former Ohio State football player Jason Whitehead shows that even scholarship athletes at college sports powerhouses can find themselves facing severe challenges with medical bills. During his first year at Ohio State, Whitehead suffered a career-ending injury. Whitehead, who was utilizing insurance provided through his father’s work, took the bills not covered by his medical insurance to his school’s athletic department, who refused to assist with these expenses. He was then medically disqualified by his school’s physician, losing his scholarship. Several years later, he learned that he still owed $1,800 in unpaid medical bills.

There is some positive news for student-athletes who suffer injuries while participating in collegiate athletics. Thanks to a 2008 class-action settlement by players who argued that their college athletic scholarships did not cover some living expenses, the NCAA set aside $218 million into the Student-Athlete Opportunity Fund, which can be used to help players cover a variety of shortfalls in their scholarship funds, ranging from medical to personal expenses. However, due to the way this settlement was structured, universities have discretion over how these funds are allocated, and thus might control or restrict player access to such funds. Additionally, in many cases, players are not aware of the availability of these funds, which limits the extent to which players actually make use of such funds.

Given the extent to which players face a perilous situation, in terms of both potentially losing their athletic scholarships, as well as being saddled with medical expenses due to injuries, it is only reasonable to ask what solutions might lead to more reasonable outcomes for college athletes.

Historian Taylor Branch, known for his writings on the American civil rights movement, has argued that college athletics is in reality a large business, and as a result, college athletes deserve some sort of compensation. Branch cites such examples as the SEC football conference having surpassed $1 billion in athletic receipts in 2010, and multibillion dollar, multiyear college football television deals, as examples of the highly commercialized nature of college sports. Branch also notes the myriad examples of financial malfeasance in college football, most prominently the improper benefits scandal at USC (full disclosure: I am a graduate of archrival UCLA), as well as similar controversies at Ohio State and the University of Miami.

Branch decries the treatment of unpaid college athletes. He views the concept of unpaid athletes as both paternalistic and patently unfair, especially in light of the massive revenues generated by their efforts. Branch also details how the whole concept of “amateur athletes” came to pass. During the 1950s, Ray Dennison, a college football player for the Fort Lewis A&M Aggies, died from a football-related head injury. Dennison’s wife sought to obtain worker’s compensation benefits, which raised the question of whether her husband was an employee engaged in a business (in this case, playing football). The Colorado Supreme Court eventually decided that the late Mr. Dennison was not a worker or employee, and so his wife did not receive any compensation for his death.

Around this time, Branch notes, the phrase “student athlete” began to work its way into much of the NCAA’s legal documents. Another lawsuit, stemming from the debilitating injury of Texas Christian University (TCU) running back Kent Waldrep, who was paralyzed from the neck down after a particularly rough tackle, further demonstrates how the use of the student-athlete term has been used to help universities avoid liability for player injuries. During the 1990s, as Waldrep continued a decades-long fight for workers compensation funds, TCU argued that since he was not paid wages, nor did he pay taxes on his financial aid, which the court found Waldrep could have kept even if he left football, Waldrep should not be treated as an employee for worker’s compensation purposes. Once again, the concept of the student-athlete was used to shield a university from liability for a player injury.

At the same time that players were denied legal recourse for injuries that occurred while playing college sports, a series of sponsorship deals made college football and basketball even more lucrative. In addition to eye-popping television broadcast deals for college athletics (CBS paid $771 million for the broadcast rights to the 2011 NCAA March Madness college basketball tournament), universities and athletic conferences have also been marketing the likenesses of former players, through the sales of video games, as well as actual footage from previous games. Players, however, receive no financial compensation from these ventures; this has led to a lawsuit by former UCLA basketball player Ed O’Bannon, as well as other college athletes whose likenesses have been used decades after leaving school.

[pullquote_right]Universities and athletic conferences market the likenesses of former players through the sales of video games, as well as actual game footage, but players receive no financial compensation from these ventures.[/pullquote_right]

Branch also challenges the assertion that college athletes truly function as “student-athletes,” noting that numerous universities have consistently accepted and excused poor academic performance from college athletes. There are numerous documented instances of college instructors being asked to raise or pad the grades of student athletes; perhaps one of the most egregious of these can be seen in the case of Jan Kemp, a University of Georgia English instructor who won over $2 million in a lawsuit against the university, after she was fired for refusing to raise the grades of some football players, in order to ensure that they would be eligible to play in an upcoming bowl game.

A more recent example can be seen at Florida State University, where during 2006 and 2007, 61 players across ten different sports allegedly participated in extensive cheating and academic fraud, leading to the suspension of these athletes, and the stripping of all wins in which these players participated. A college academic tutor was implicated in this scandal, as were allegations that coaches had knowledge of fraudulent academic practices by student athletes, but chose to look the other way. Such treatment, Branch and others argue, lays waste to the myth of the student-athlete as being somehow a student who simply happens to participate in organized sports.

In addressing these myriad problems, Branch offers several solutions. First, players must be given a “meaningful voice” in matters that affect them. Branch believes, however, that the NCAA is reluctant to take such a step, because they would then face real challenges from college athletes. For example, how would universities react to demands for compensation from players whose monetary value to the school (for example, a star running back or point guard who fills seats at a university arena) far exceeds the dollar value of their scholarship? Additionally, how would universities deal with a situation where athletes who participate in revenue-generating games like football demand compensation, but those who play less popular or lucrative sports like lacrosse or tennis stand little chance of receiving real remuneration for their athletic talents?

Lastly, Branch points to a successful precedent for compensation of athletes competing in a non-professional activity: the Olympics. Until the 1970s, American Olympic athletes were forbidden from participating in professional sports in the United States. After President Carter signed the Amateur Sports Act, athletes were granted a voting stake in the Olympic’s governing body, and were allowed to participate in professional sports at home, and to receive sponsorships and endorsements. As Olympic athletes began to receive treatment and compensation more akin to that of professional athletes—and in many cases, such as with the United States basketball team, were actually professional athletes—“the world did not end.”

Numerous important have also been advanced against the payment of college athletes. Writing in Sports Illustrated, Paul Daugherty argues that college athletes (especially those with full scholarships in popular sports like basketball and football) already enjoy numerous advantages, including not having to work to pay their way through school, and free accommodations at first-class hotels and travel to numerous destinations while competing on the road. Daugherty also notes that college athletes enjoy access to specialized tutoring, and often professors who are more pliant in the grading of student-athletes. Daugherty also believes that offering compensation to players based on how much revenue they generate for a school would likely lead to a situation where some athletes (most likely those in non-revenue sports like swimming) might lose their scholarships and have their sports downgraded to the lesser “club” status. Daugherty also argues that since sports like football and basketball are not necessarily profitable at every school, requiring pay arrangements might actually be harmful to the football and basketball programs at some universities.

Other commentators have argued that offering payment to college athletes would undermine the educational mission that is supposed to be at the heart of the university experience. Writing for The Sports Journal, Dennis Johnson and John Acquaviva point out that payment of athletes might make their university experience, in essence, a commercial transaction. They also believe that there is a fundamental lack of appreciation for the value of a college degree and its cost to the university, among those who argue for payment of college athletes.

Johnson and Acquaviva share Daugherty’s concern that payment of college athletes based upon their contributions to university revenue poses a threat to less profitable sports. Since programs like baseball, softball, golf and many others don’t actually generate substantial revenue for universities, the authors fear that the payment of basketball and football players will lead to the eventual elimination of those programs that are not net sources of revenue.

Ultimately, it seems only fair that college athletes in revenue-generating sports receive some compensation for their financial contributions. As discussed earlier, college football and basketball players at the most popular and successful programs can generate tens of millions of dollars in revenue for their respective institutions, through television broadcast deals, as well as ticket sales and merchandise and sponsorship agreements. It’s hard not to notice that these athletes also make it possible for college football and basketball coaches to earn multimillion dollar salaries. These athletes face the risk of serious injury (which has the potential to derail a potentially promising professional career), and also face tremendous pressure to perform.

With that said, many of the concerns raised by Daugherty and others do have some validity. Excessive compensation of college athletes does have the potential to undermine the educational mission of a university through the further commercialization. From a financial standpoint, it might also make non-revenue sports far less viable financially, and thus lead to dedicated, talented athletes in sports like swimming or volleyball facing the complete elimination of their sports from the collegiate arena. After all, large paychecks for student athletes will necessarily mean reductions in athletic funding elsewhere.

Additionally, any situation where players are compensated as a portion of their schools total athletic revenue could lead to scholarship decisions being made purely on the basis of financial compensation, that is, a wide receiver choosing between football scholarships at the University of Florida, USC and the University of Miami might select whichever university posted the highest revenues, and thus largest player salaries. Through this, colleges might effectively become a microcosm of the NFL and other professional leagues, where, much to the chagrin of fans, players frequently leave teams for financial considerations.

A more equitable solution might be to separate schools into tiers, based on a model that accounts for the revenue that these universities generate from ticket sales, broadcasting agreements, and other direct sources of revenue related to a particular sport. Obviously, there are some challenges in categorization; for example, what portion of a school’s sweatshirt and T-shirt sales are tied to the success of its football or basketball programs? But overall, a uniform method of calculating the revenue generated by a particular sport at a university should be devisable.

These revenues could be normalized for a school’s size and the size and income levels of the surrounding population; after all, a school like USC, located in California, almost certainly has more potential to generate revenue than a football powerhouse like Auburn, which is located in less populous and poorer Alabama.

Schools with similar normalized scores would be grouped into a given tier, which would be broadly representative of their financial status in a particular geographic and economic market. All the schools in a particular tier would be required to place some portion of their total revenues in a pool, which would be used to compensate players. All players, at all schools, within a given tier would be compensated the same amount if the sport they competed in generates net revenues (primarily basketball and football).

[pullquote_right]A uniform method of calculating the revenue generated by a particular sport at a university should be devisable.[/pullquote_right]

At the end of a season, players who performed exceptionally well, either statistically or in helping their teams succeed on the field or court, would receive a performance bonus. Player performance would be judged by a panel comprised of former players and coaches, and these performance scores would be fed into a mathematical model to generate fair bonus compensation for exceptional performers. In order to minimize bias, former players, coaches and assistant coaches would not be allowed to assess the performance of any team that they played for, or athletic conference that they were a part of (thus, a former University of Florida assistant coach or player has no incentive to reward current Florida players, or penalize a star at rival LSU or Alabama, a fellow member of the SEC conference). Bonuses and overall compensation would be capped, just as salaries are in the NFL and NBA. These bonuses would also be limited in a manner that would allow schools to avoid, or at least minimize, the risk that non-revenue sports might be phased out.

Through such a system, players would be able to share in the fruits of their labors, as do their coaches, university administrators, and others who currently enjoy the financial benefits of the athletic endeavors of college football and basketball players. Star players would also reap a reward for a job well done. The exact dollar amount, and portion of athletic revenues, that would be directed towards player compensation requires a highly detailed examination of university and athletic program finances, which is beyond the scope of this piece. However, a system conceived along the lines proposed has the potential to allow players to share the lucrative rewards of the success that they helped generate.

It is true that such a system treats college football and basketball players differently from other student-athletes, who likely would not be paid. And why shouldn’t it? Student-athletes in these two sports can generate an immense amount of revenue for their respective institutions, something that sports like golf or volleyball simply are not capable of doing.

A variety of business organizations provide higher compensation to employees or groups of employees who are responsible for an outsized portion of that entity’s financial success. Within Wall Street investment banks, top traders (who execute the purchase and sales of stocks, bonds, or other financial instruments for the bank or its clients) are often been paid larger bonuses than leading deal-side investment bankers (those who negotiate mergers and acquisitions, or help companies raise capital and go public), since traders, especially pre financial crisis, generated a greater portion of profits for most banks. In a large technology company, a group focusing on cloud computing, which is a highly sought-after technology at the moment, might be more profitable, and thus enjoy greater individual compensation, than a team focused on the less profitable personal computer development. Just the same, there is no real reason, other than the misplaced sentimentality, to demand some sort of parity in compensation, between football and basketball players as opposed to volleyball players or swimmers, given the revenue gap between players in these respective sports. It is fair to say that no sport should be eliminated due to another sport; however, that is far different from arguing that an athletes in a revenue-generating sports cannot receive any compensation whatsoever, because it won’t also be possible to pay peers in non-revenue sports.

The very best college athletes in football and basketball also might enjoy a financially rewarding career in a professional league, something that, as Joe Nocera noted in his excellent New York Times piece, is not true of wrestlers or rowers. Also, Nocera observes, athletes in football and basketball are generally required to attend college if they want to play in professional leagues in the United States (a notable exception to this rule was exposed by Brandon Jennings of the Milwaukee Bucks, who chose to play for a European basketball team for a season, rather than attend college). A player could be badly injured in college, and thus lose his chance to ever realize his professional dreams. In some cases, these players might have already been prepared to play for a professional team straight out of high school, as demonstrated by the success of Lebron James, Kobe Bryant and Kevin Garnett in the NBA. It seems only fair, given the risks college players are forced to take with future professional careers, that they should be allowed to earn some compensation while playing in college.

Aside from compensation, which affects only one class of college athletes, broader reforms are required to protect all college players. All college athletes, regardless of their sport, should enjoy full medical coverage, throughout their time in university, for any and all injuries sustained while competing in their respective sports. Student-athletes should never have to pay out of their own pockets for an injury incurred on the playing field, or have to seek outside insurance coverage to cover the costs of their injuries.

Given that the most successful college athletics programs generate such large revenues, a formula ought to be devised where all universities pay some portion of their athletic revenues into an insurance pool, which would be used for the exclusive purpose of ensuring that all student athletes receive all required medical coverage. Such a formula would have to take into account a variety of factors, including the size and revenues of an athletic program, how much players in revenue-earning sports like football and basketball are being paid, and the projected yearly costs of providing medical coverage to all college athletes. It is unconscionable that any student athlete, whether playing basketball or running track, should be denied the medical care that they require.

As for athletic scholarships, coaches should continue to enjoy the discretion to dismiss players. Sports teams, whether at the collegiate or professional level, function as competitive entities, where winning (within established rules) is the primary objective. As a result, if a player holds a team back from successfully competing, or does not fit with a particular coach’s strategy or style of play, a coach should enjoy the discretion to dismiss this player.

At the same time, any college athlete on a scholarship almost certainly relied on the assurances of a head coach, acting as a representative of a university, that there would be some role for the athlete on a university’s team, and that this player would have the opportunity to obtain an education. If there is no longer such a role athletically, then the player should at least enjoy the opportunity to complete his or her education. Given how crucial a college education can be to future employment prospects, the loss of an athletic scholarship should not spell the death of an academic career. Thus, universities should guarantee that if a player loses a full athletic scholarship, he or she will still be able to complete university coursework, and graduate if all requirements are met. There are exceptions where a student should be dismissed outright—for example, for criminal conduct—however, simply losing a scholarship due to reduced athletic performance, or a poor player-coach fit, should not lead to the termination of one’s scholarship.

The story of college athletics today is one of big winners—primarily universities, coaches, television networks, and merchandisers, all of whom profit handsomely off their unpaid, poorly protected workforce: college athletes. That simply cannot continue any longer. Players should be paid for the wealth they help universities generate, and all players, whether or not they make a university richer, should enjoy basic protections in terms of scholarships and medical expenses. As Kevin Ware continues on the road to recovery, he deserves to know that he can complete his education, and will not be stuck with a hefty bill for his medical treatment. Furthermore, if Ware is able to return to playing basketball, he, and his Louisville teammates (who won the 2013 NCAA national championship), deserve to earn a financial reward for their efforts.