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Keith Birmingham/Digital First Media/Pasadena Star-News via Getty Images

(Keith Birmingham/Digital First Media/Pasadena Star-News via Getty Images)


Unions in the end zone?

New demands from Pac-12 football players could be ominous for college sports

Amid raging national upheaval over racial injustice this summer, college football players from across the Pac-12 Conference started a protest of their own.

Under the hashtag #WeAreUnited, the players in early August published an extensive list of demands on the Players’ Tribune website. Those demands included greater COVID-19 protections; greater control over the players’ rights to their names, images, and likenesses; and protections for nonrevenue sports in danger of being cut. But chief among the players’ demands was that the Pac-12 “distribute 50 percent of each sport’s total conference revenue evenly among athletes in their respective sports.” 

The #WeAreUnited group—reportedly supported by at least 400 Pac-12 football players—threatened to boycott the 2020 season if the league didn’t meet its demands. (Officials have since postponed the season due to COVID-19.)

The players’ stance raises the specter of unionization in college sports. Never mind that there is no way the Pac-12 will accede to #WeAreUnited’s financial ultimatum—and never mind that the NCAA prohibits schools from financially compensating athletes to begin with. A successful push to unionization wouldn’t just shake up the college sports landscape: It would be the equivalent of a destructive earthquake.

Critics of college football’s power structure have long accused the NCAA and its member conferences and schools of exploiting persons of color, who often come from low-income families. While the sport’s power brokers rake in billions of dollars from packed stadiums and lucrative television deals, the argument goes, the players themselves earn nothing—at least not beyond what their scholarships cover.

Unionization nearly happened once before in college football: In 2014, the Chicago office of the National Labor Relations Board declared Northwestern University players “employees,” the first step toward becoming a union. 

From a legal standpoint, the Chicago office’s ruling made sense: The National Labor Relations Act defines an “employee” as someone who provides a service for another, under the other’s control, in exchange for compensation. Technically, college football players can check off all the boxes: In exchange for scholarships that cover room, board, tuition, and attendance expenses, the athletes spend up to 20 hours per week—the maximum allowed under NCAA rules—preparing for and (ideally) competing in games. That doesn’t include the additional hours coaches expect players to spend physically and mentally preparing for games outside of practices and team meetings. 

Universities are already bracing for a financial hit.

The Northwestern players’ unionization bid ultimately failed: The Washington, D.C., office of the National Labor Relations Board blocked the effort after the university appealed.

Should a group like #WeAreUnited be successful—and thereby be able to negotiate collective bargaining agreements like their pro counterparts in the NFL—the consequences would be disastrous for college sports budgets.

Universities are already bracing for a financial hit now that several athletic conferences, including the Pac-12 and Big Ten, have canceled or postponed their football seasons. The University of Oregon, for instance, predicts losses as high as $80 million. Such losses threaten the existence of nonrevenue sports. (Essentially, that’s every sport besides football or men’s basketball, which generate the money schools need to fund their nonrevenue sports.) 

Should college football players get a cut of conference revenue, university athletic departments would take even more of a hit and ax nonrevenue sports such as swimming, field hockey, wrestling, or gymnastics to stay afloat.

College football teams would also face downsizing: Universities seeking to retain a larger share of revenue could reduce the sizes of their teams and, accordingly, offer fewer scholarships. This would mean fewer opportunities for athletes from low-income families to go to college, earn degrees, and thus increase their earning power.

Complicating things is Title IX, the federal law requiring that the athletic opportunities universities provide to men and women be at least comparable, if not equal: Schools cannot distribute, say, $50,000 in conference-generated revenue to football players and $25,000 to women’s basketball players, even if the women’s teams don’t generate as much revenue.

It’s hard to blame #WeAreUnited and other college athletes for wanting a bigger piece of the multibillion-dollar revenue pie. Still, college scholarships can be worth $250,000 or more over four years, not including additional university-funded perks given to college athletes. In addition, athletes who receive sports scholarships can finish college debt-free, sometimes with multiple degrees.

That’s not nothing.

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Unfair to girls

A federal court ruling for transgender athletes in Idaho suggests the direction legal winds are blowing

A federal court in Idaho may have signaled the beginning of the end for girls’ and women’s sports.

Judge David C. Nye handed transgender athletes a key victory on Aug. 17 in the fight over whether college and high-school sports’ governing bodies must let biological males compete in women’s athletic events: The Trump appointee issued a preliminary injunction blocking Idaho’s Fairness in Women’s Sports Act (FWSA), a law prohibiting males from competing as “females” in high-school and college sports within the state.

Lindsay Hecox, a male runner who identifies as female and wishes to compete for Boise State University’s women’s cross-country team, sued to overturn FWSA, which Gov. Brad Little signed in May. Another plaintiff in the case is an unnamed female high-school athlete who feels having to prove her biological sex is an invasion of her privacy.

A few states’ governing bodies for interscholastic sports still classify athletes based on the gender listed on their birth certificates. Idaho was the first to bar biological males from girls’ and women’s sports under state law. (Disclosure: In my capacity as a constitutional law attorney, I testified in favor of the FWSA before the Idaho Legislature in February.)

Nye’s ruling did not strike down the FWSA entirely: The plaintiffs must win a permanent injunction for that to happen. However, to obtain a preliminary injunction, a plaintiff must show he is likely to win his case. A preliminary injunction typically (though not always) foreshadows a court’s ultimate ruling: In blocking the FWSA, Nye determined the plaintiffs would likely get Idaho’s law declared unconstitutional.

The judge saw legal writing on the wall following the U.S. Supreme Court’s 6-3 ruling in Bostock v. Clayton County: In that June decision, the nation’s highest court declared that Title VII’s prohibition of employers’ discriminating “on the basis of sex” also extends to discrimination against gay and transgender persons. Title IX, the federal law aimed at ensuring equal opportunities for women at educational institutions—including participation in interscholastic athletics—likewise prohibits discrimination “on the basis of sex.” Courts thus use Title VII cases as a lens for interpreting Title IX.

The irony is twofold: First, the federal government enacted Title IX in 1972 specifically to advance the cause of biological women. Second, Title IX is the reason why high schools, colleges, and universities across America have women’s teams in the first place. 

Federal and state courts have consistently recognized that segregating sports programs by sex is the best way to ensure equal opportunities for women in athletics: “Open competition [with males] would, in all probability, relegate the majority of females to second-class positions as benchwarmers or spectators,” Rhode Island’s federal court wrote in 1979, upholding a high school’s decision to keep a male athlete out of girls’ volleyball.

In Connecticut, three female track and field competitors currently face an uphill climb in their own court battle to secure the right to compete exclusively against other girls: Federal Judge Robert Chatigny ruled in May that the biologically female plaintiffs could not refer to transgender females (i.e., boys who identify as girls) as “biological males.” In so doing, Chatigny tipped his hand as to how he’s likely to rule. The female athletes’ attorneys have asked the judge to recuse himself.

In Idaho, Nye ruled the way he did in part because the NCAA and the Olympics let transgender athletes compete as members of their chosen gender. Both require males to undergo testosterone reduction treatments before they can compete as females.

A study published in late 2019, though, indicates that male athletes retain physical advantages over females even after undergoing a year’s worth of hormonal treatments. Nye’s ruling ignores physiological realities and is a bad sign for women’s sports. 

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Illustration by Krieg Barrie

(Illustration by Krieg Barrie)


The names of the games

The Redskins football nickname is out. What other sports teams could lose their names next?

When Washington, D.C.’s NFL team announced in July it was dropping its controversial “Redskins” moniker, media and activists hailed the move as a long time coming.

Team owner Daniel Snyder evidently didn’t make the decision out of a sense of guilt over using a nickname that many deemed an anti–Native American slur, a name the team bore for nearly 90 years and which Snyder once vowed never to change. Instead, he was bowing to financial pressure from multiple team sponsors—most notably FedEx, whose name graces the team’s stadium, FedEx Field, and whose CEO, Fred Smith, is among the team’s minority stakeholders.

As he considers how to rebrand his team, Snyder has even leaned into what news media nationwide have done for several years now, calling his club the “Washington Football Team” for the time being. A gold “W” will replace the traditional Native American head on the team’s burgundy helmets this season, assuming the season isn’t canceled due to COVID-19 concerns.

At the height of national upheaval targeting anything perceived to symbolize racism, the football team nickname that was arguably the most offensive in all of sports is finally gone. Now that the phenomenon known as “cancel culture”—the shaming, boycotting, or getting rid of any person, brand, or thing (statue, flag, TV show, etc.) that certain groups deem offensive—has claimed a perhaps righteous victory over the Redskins nickname, more may follow: Baseball’s Cleveland Indians, for instance, is considering a rebranding of its own. The University of Nevada, Las Vegas, has signaled it may drop its Confederate-themed nickname, the Rebels, as well.

All of which raises the question: What other nicknames might cancel culture claim?

Two teams with seemingly innocuous nicknames—baseball’s Texas Rangers and college sports’ LSU Tigers—have already found themselves as candidates.

The Rangers’ name pays homage to the Lone Star State’s renowned lawmen. However, Chicago Tribune columnist Steve Chapman, a native Texan, has blasted the moniker: Extensively quoting Doug J. Swanson’s book Cult of Glory: The Bold and Brutal History of the Texas Rangers, Chapman declared the law enforcement agency’s roughly 200-year history to be inextricably intertwined with “savagery, lawlessness and racism.” The baseball team’s name, then, “is an affront to Hispanics, African Americans, and anyone who favors racial equity,” argued Chapman.

For that reason, Chapman said, the League of United Latin American Citizens has protested the name since the former Washington Senators relocated to Texas following the 1971 season.

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