Memo to NCAA: If You Care for Student-Athletes, Stop “Koltering”

If you follow college football, and don’t know “Koltering,” the term was coined when Jim Harbaugh, then head coach at Stanford, offered a scholarship to Kain Kolter—and withdrew it when he recruited a better QB. Note aside, it’s easy to see how Kolter became a labor activist, isn’t it? Now Harbaugh is at it again, this time withdrawing a longstanding scholarship that Michigan made to OT Erik Swenson. Harbaugh wasn’t even a man about it—he told his assistant to contact Swenson with the bad news. Adding insult to injury, Swenson had successfully recruited other players to Michigan.

Memo to NCAA: Your premise in numerous player lawsuits is that these young people are student-athletes who signed a grant-in-aid agreement—emphasize, agreement, to attend a certain school. Agreements are made when Party A makes an offer to Party B, and Party B accepts the offer. Harbaugh and Michigan will say, of course, that no G-I-A was signed. That’s two weeks off. But see the doctrine of detrimental reliance, a legal principle that accounts for this type of grossly unfair behavior: “In order to prevail on a promissory estoppel [detrimental reliance] claim and have a promise enforced, you must show the following: A promise was made. [Yup, by Michigan.] Relying on the promise was reasonable or foreseeable [Yup, Swenson was so over-the-moon, he recruited for Michigan.] There was actual and reasonable reliance on the promise [Yup, Swenson stopped being recruited by other schools.] The reliance was detrimental [Yup, Swenson has to shop for a new school and football program on short notice]. 

The NCAA’s Student-Athlete Advisory Committee Speaks Out, Loses (This Time)

In my 2012 Wisconsin Law Review article (click here for details) I predicted that the NCAA would co-opt the nascent player labor movement as employers did in the 1930s, when they were confronted with the prospect of becoming unionized. At the 2016 NCAA Annual Convention— about five months after the NLRB dismissed the union organizing petition by Northwestern football players— the recently augmented Student-Athlete Advisory Committee (read: company union) proposed to re-balance time demands on players by legislating a ban on athletically related activities, other than competition, for a continuous eight-hour period between 9 p.m. and 6 a.m. The proposal was tabled at the last minute, meaning it cannot be acted on until next year.

A good development? Student-athletes were able to speak freely and critically at the convention. Consider this report from Inside Higher Ed (here):

“Who’s to say we won’t be in this exact same boat next year, where after a year of work we come here and people say they support the principle of these time demand proposals but there are too many logistical challenges and, for that reason, they won’t vote for them,” Nandi Mehta, a soccer player at Northwestern University, said. “There’s no guarantee that won’t happen. Eventually we have to take the plunge.”

Ty Darlington, a football player for the University of Oklahoma, went further, blasting the association’s members for what he said was a lack of urgency. Darlington said he worried the Power Five conferences, after using a new autonomous governance structure to approve a number of big changes last year, had already grown complacent. “I feel like there should be more significant legislation on the table,” Darlington said in an interview after the vote. “When we’re talking about the hot topics, what student athletes really care about, we didn’t hit any of them. I’m thinking about time demands, transfer eligibility. I’m thinking about name, image and likeness restrictions.”

  

Is Player Control by Teams Involuntary Servitude? Thoughts on MLK Day

Martin Luther King confronted racial segregation, a pernicious outgrowth of slavery. At times, baseball players (and others) have made the legal argument that restrictions on free agency— today, called “player control”— compare to involuntary servitude. No court has bought this argument; however, some judges, in dissenting opinions, have agreed with the legal analogy.

Today, we read the best version of this argument, Judge Jerome Frank’s take on baseball’s reserve clause in the 1940s. Billy Gardella jumped to the Mexican League, and was blacklisted for five years by baseball’s commissioner, Happy Chandler. Judge Frank said, in dissent:

We have here a monopoly which, in its effect on ball-players like the plaintiff, possesses characteristics shockingly repugnant to moral principles that, at least since the War Between the States, have been basic in America, as shown by the Thirteenth Amendment to the Constitution, condemning ‘involuntary servitude,’ and by subsequent Congressional enactments on that subject. 

The most extreme of these penalties is the blacklisting of the player so that no club in organized baseball will hire him. In effect, this clause prevents a player from ever playing with any team other than his original employer, unless that employer consents. 

As one court, perhaps a bit exaggeratedly, has put it, ‘While the services of these baseball players are ostensibly secured by voluntary contracts a study of the system as * * * practiced under the plan of the National Agreement, reveals the involuntary character of the servitude which is imposed upon players by the strength of the combination controlling the labor of practically all of the players in the country. 

* * * There is no difference in principle between the system of servitude built up by the operation of this National Agreement, which * * * provides for the purchase, sale barter, and exchange of the services of baseball players—skilled laborers—without their consent, and the system of peonage brought into the United States from Mexico and thereafter existing for a time within the territory of New Mexico. * * * The system created by ‘organized baseball’ in recent years presents the question of the establishment of a scheme by which the personal freedom, the right to contract for their labor wherever they will, of 10,000 skilled laborers, is placed under the dominion of a benevolent despotism through the operation of the monopoly established by the National Agreement.’ I may add that, if the players be regarded as quasi-peons, it is of no moment that they are well paid; only the totalitarian-minded will believe that high pay excuses virtual slavery.