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“We Shouldn’t Rest on This Success” -- a Discussion with Dr. Nathan Kalman-Lamb on the NCAA’s Name, Image, and Likeness Issue

On why the NCAA should love Name, Image, and Likeness bills, how the risk of CTE should shape the athlete compensation discussion, and the ethics of football fandom. 

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chronic traumatic encephalopathy Jeff Siner/Charlotte Observer/Tribune News Service via Getty Images

College sports fans and politicians have increasingly focused on the rights of college athletes, especially their ability them to profit from their own name, image, and likeness. California blazed a trail with the Fair Pay to Play Act, and many states have followed suit, including Florida (Black & Gold Banneret previously talked with Florida State Representative Chip LaMarca regarding his NIL bill – you can find that podcast here).

As part of our continuing discussion on NIL issues, we interviewed Dr. Nathan Kalman-Lamb, one of the leading academics on labor issues and exploitation in sports. Dr. Kalman-Lamb is a Lecturing Fellow at Duke University. In addition to scholarly journals, Dr. Kalman-Lamb’s writing appears in outlets like the Los Angeles Review of Books and The Chronicle of Higher Education. He is the author of Game Misconduct: Injury, Fandom, and the Business of Sports.

There’s a trend towards recognition — by the public and by state governments like California and Florida — that college athletes deserve more than the NCAA allows. We’re seeing that addressed by a wave of bills allowing college athletes to profit from their name, image, and likeness. Is that the right fix?

If we want to think in an ethical way about the question of compensation in college sport, we need to stop using the status quo as a measuring stick. From the standpoint of what the NCAA and member institutions currently offer players, yes, NIL rights are a meaningful improvement. But, that, to me, is something of a red herring. Because, if we want to take seriously the question of what players deserve, we need to think about high revenue college sport in terms of what it actually is: commodity spectacle produced through the labor of athletes. If we think of college sport in those terms, it frames this discussion a little differently--it raises the question of why we would ever consider it justifiable in the first place for workers to be barred from the fruits of their labor so that others can reap the benefits.

If we think of compensation issues in college sport in the terms I have just laid out, NIL rights don’t look like the big win for campus athletic workers they have been made out to be. In fact, as I have argued elsewhere, the big winner with NIL rights might be the NCAA itself. After all, we are talking about promotional money that will come from outside the universities -- money the athletes will need to perform additional promotional labor to receive. And, most importantly, this means that we will not be talking about actual compensation by the NCAA and universities for the labor athletes perform in order to produce the spectacle fans love. That form of compensation would put a major dent in the revenue of universities, but NIL is actually a buffer against that feared outcome, I think, because it will silence cries of exploitation and thereby cleanse the guilty consciences of fans.

There is one final part of this equation I also want to address, and that is the fact that NIL focuses our attention on compensation as if that is the full measure of exploitation in college sport. The fact that college athletes provide labor--produce a commodity--yet are treated like they aren’t workers is not just a problem from the standpoint of compensation. It also means that college athletes don’t have protections for their working conditions -- occupational health and safety provisions. Likewise, it means they don’t have union rights that would allow them to defend themselves from abusive coaches and inhumane training regimes (not to mention negotiate the sort of revenue share enjoyed by their professional peers).

So, my short answer is this: NIL is the wrong fix for athletes, because it ensures that they will continue to be exploited for their labor. But, for that very reason, it is a perfect fix for the NCAA.

So is this an argument against incrementalism -- because NIL gives the NCAA a degree of cover which may be counterproductive long-term? Or you’d agree better NIL than nothing, as long as we don’t deceive ourselves into thinking it’s sufficient?

I think, more than anything, I mean this as a reminder to the folks who care about the rights of NCAA athletic workers that we shouldn’t rest on this success. It’s easy to get caught up in the celebration of potential changes that have been decades in the making, but if we do, we allow the long con that is NCAA amateurism to persist under a new guise. We owe the athletes better than that.

What do you make of the NCAA’s announcement last month that it would start a process to permit college athletes “the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model?” Isn’t the phrase “consistent with the college model” carrying an awful lot of weight here?

Right, you hit the nail on the head. The salient phrases of that passage are “collegiate model” and “benefit.” In order to understand why, it’s useful to compare the language in the NCAA’s announcement to the language of the California Fair Pay to Play Act. The California legislation explicitly prohibits institutions of higher education in the state other than community colleges from “preventing a student participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness.” Notice the explicit use of “compensation” versus the ambiguous term “benefit.” Note also the contrast between the reference to the “collegiate model” -- aka ‘amateurism’ -- and the direct repudiation of amateurism in a piece of legislation that outright rejects the antiquated and essentially elitist principle by prohibiting universities from imposing it.

Let’s look at a few of the other passages in the guidelines the NCAA laid out for how the three divisions are supposed to create opportunities around NIL.

The NCAA’s Board of Governors requires that any new “benefits” associated with NIL must “assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.” One might contend that a “compelling reason... to differentiate” is the fact that so-called “student-athletes” are providing the labor that makes a multi-billion dollar industry possible. Then there is this: since when are college athletes actually treated like “non-athlete students” by the NCAA itself? In fact, we know that the education campus athletic workers receive is not the same as the education of their peers. College athletes face academic clustering -- the practice of funneling them into classes perceived to be easier (i.e. non-STEM classes) so that course work will not interfere with athletic obligations and because coaches actually have clauses built into their contracts that provide them with bonuses if players achieve requisite GPAs. Moreover, players must build their academic schedule around team responsibilities -- no mean feat -- and are not permitted to avail themselves of the perks of an undergraduate degree such as study abroad and other exciting summer programs because, you guessed it, they need to be on campus working playing for their teams. And none of this is to mention the fact that actually showing up in class energized and alert when you are working forty-plus hours for a football team is probably not the most realistic of expectations.

Finally, recall my earlier argument that the NCAA’s greatest fear is that players will be recognized as workers eligible for union rights, given the potential for that to cut into the industry’s bottom line and re-direct revenue into the pockets of the people who actually generate it. The NCAA heads that issue off at the pass here, requiring that any NIL liberalization “make clear that compensation for athletics performance or participation is impermissible” and “reaffirm that student-athletes are students first and not employees of the university.” The bottom line is that the bottom line must be protected at all costs.

Politicians and other proponents of NIL bills have sometimes characterized these efforts as getting college athletes access to the “free market.” Is that the appropriate way to think about these issues?

My take on this may be different than other proponents of college athlete compensation. The argument of most -- the Jay Bilas position, if you will -- is that college athletes should have the same rights as any other actors in U.S. free market capitalism. Amateurism rules prohibit compensation for labor or likeness and thus operate as an unjust constraint on the economic freedom of this specific group of American workers. That’s a perfectly logical position and a consistent application of neoclassical economic thought, if you will forgive me the academic jargon.

The problem for me with that position is not that it is incorrect about the question of economic rights, but rather that the singular focus on the worker as economic actor does not account for other critical dimensions of the laborer’s experience as laborer. My concern is with the broader question of working conditions. How can we protect athletes from the physical, psychological, and emotional harm that seem to be endemic to capitalist high-performance sport? Compensation won’t cover the cost of the trauma associated with life-changing and debilitating injury or the heartbreak of devoting one’s life to the dream of an athletic career that doesn’t end with going pro. However, union rights would at least allow athletes some measure of opportunity to protect their interests and well-being, and to get the most out of the college athletic experience in a holistic and self-determined sense.

How do the physical risks that athletes face influence the way we should think about these issues, and what would you say to the perspective that the physical risks are part of the game?

I’m thrilled you’re asking me this question, because for me this is the most important part of the conversation about exploitation in college sports. I completely reject the premise that physical risks are ‘part of the game,’ or, to be more precise, that they should be. High-performance sport is not a natural dimension of human experience, it is a construct, and a fairly youthful one at that. The more we learn about the harm to the body associated with elite sport, the more clear it becomes that we are asking too much of our athletes.

While I feel this argument holds for the vast majority of college sports, I cannot help but focus on football because of what we now know about the long-term harm inflicted by head injury. Boston University researchers found in 2017 that 91% of deceased former college football players’ brains had evidence of chronic traumatic encephalopathy (CTE), a degenerative neurological condition. Moreover, since 2014, there have been eleven heat stroke deaths in college football from over-training. The harm associated with football is both extreme, and, I would argue, quite possibly inevitable.

Can you elaborate on the emerging science surrounding CTE risk and the BU study specifically? Isn’t there selection bias resulting from the fact that CTE can only be detected following autopsy? What player would consent to have their brain studied after death, if not someone who had some reason to be concerned about CTE or other head injury?

My expertise as a researcher is not in the STEM fields, let alone the neurological sciences, so I don’t want to get to deep into the weeds on this. Clearly, one of the challenges for the researchers at BU is access to brains for their study. This means that their research actually becomes more persuasive every year, as their sample size and range of brain samples increases. And, by the way, there are football players without symptoms of CTE donating their brains because at this point all players have reason to be worried about what the game is doing to their brains and those of their friends and colleagues. In fact, just recently, those same researchers have revealed, based on a sample that now includes a control group of non-CTE football players’ brains, that the chances of contracting CTE double with every 2.6 years of participation in football.

So, if the question is do I think 91% of college football players will have CTE, the answer is probably not. But, I think the more relevant question is whether football, particularly prolonged participation in football, leads to various forms of harm to the brain, including CTE. I think we have very compelling evidence that the answer to that question is yes.

Now, there’s another aspect to this equation we haven’t discussed yet, which is that most people respond to this argument about harm and football by saying that athletes know what they signed up for. In other words, they have consented to participate and they have willingly taken on the above risks. That, too, is a proposition I reject. Consent is an easy concept in a vacuum. I either want something or I do not. That simplicity is complicated when we start to consider the structural context that frames the choices we make. What are the conditions that produce the options in front of me? I would argue that capitalism, structural racism, and patriarchy shape our capacity to consent. If society systematically denies me access to opportunities other than sport, am I really consenting to sacrifice my body at the altar of the NCAA when I accept a scholarship, or is that a choice informed by constraint, even coercion? That would be my contention.

Indeed, the sheer inaccessibility of higher education in the United States is itself a structural constraint on the decisions of athletes to participate in NCAA sport. This in turn means that the fact that we are sacrificing disproportionately Black athletes to the various forms of harm inflicted by the gridiron -- and then refusing to compensate them in a meaningful way for that sacrifice -- is an unconscionable systemic injustice that implicates so many of us, from the folks who watch, cheer, and extract meaning -- fans -- to faculty empowered to nurture these very same students. We are not the ones who set this system in motion, but we share a responsibility to campus athletic workers to create the conditions for them to have the most enriching and least harmful college experience possible.

Right now, we are all catastrophically failing in that endeavor.

What should fans do to be more ethical “consumers” of sports? Or do you even agree that it’s possible to be an ethical consumer of more dangerous sports like football or hockey?

Let me start by saying I understand why fans love sports, because I love sports. I came to my research on sport from the position of fan far more than participant. However, I also think that as fans, we need to put our own investments to the side and interrogate the extent to which the spectacle we love is causing harm, and, more than that, the extent to which our fandom is actually fueling that harm. Because, like it or not, the political economy--the business--of sport, including high revenue college sport, is predicated on the spectatorial market. Without fans, there is no money to be made. It is in this sense that fans are complicit in the harm caused by sports like football and hockey.

This is a long way of saying that, short of profound and sweeping rule changes that strip away the violence, I don’t think it is possible to be an ethical consumer of collision sports. It brings me no pleasure to say it, but I don’t know how we can persist in a pastime that we know systematically requires the sacrifice of children, teenagers, and adults for any reason, whether it is the pleasure experienced by the fan, or, worse, the cash coveted by the governing institutions of professionalized sport. Something needs to change, and much like with the NCAA itself, that change isn’t coming from the top.