How Draymond Green’s Largesse, and the NLRB’s Cowardice, Fail the College Black Athlete

Though I am a die-hard Michigan fan, I am a big believer in Tom Izzo at Michigan State. And I am a huge fan of Draymond Green, a Saginaw native, now of the Golden State Warriors, who has great grit, and is completely down-to-earth. But I’m disappointed in Draymond, who has just announced that he will be donating $3.1 million to MSU athletics. This is not unlike the sharecropper, having left the property some years earlier, where he toiled with no guarantee, no wage, and no accumulated assets, walking back down the road to announce to his former landowner/lessor that he would want to give him, gratis, some of the millions which he has accumulated since he last departed. Draymond does not recognize that he has already, through the course of his four years of service at MSU, donated millions to that school.

But here’s how Draymond’s good-hearted, misguided charitable instincts are related to the NLRB’s recent stunning, cowardly refusal to ‘exercise jurisdiction’ regarding the Northwestern football player’s unionizing efforts. They both reveal the central defect in the entire college football business model: in terms of sector-based bargaining and power, the players are, once again, bereft: left with not just no power, but no basis for aggregating as a sector, or group, to advance and protect their interests. So the ‘little guy’ at the heart of the entire college sports business model continues to grovel at the feet of the new academic/aristocrats who rule the business.

Draymond should take his money, and gather with other wealthy (primarily black) athlete-celebrities, to donate to a non-profit fund which will be used to allow current college athletes to get access to legal counsel which will protect their interests.  (Some of the black Michigan sports giants should join in to found this non-profit: Jalen Rose, Magic, Jeter, Chris Webber, etc. )

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Wrong-Way Goodell: Where I Rate Goodell’s Post-Deflategate Fate

Roger Goodell is like wrong way Roy Riegels, the Cal linebacker/center who picked up a Georgia Tech fumble in the 1929 Rose Bowl, and ran the ball in the wrong direction — toward his own goal line — which he failed to cross only because his own teammate corralled him at the 1-yard line.


Goodell, like Riegels, has similarly set back the NFL’s labor relations field position, in advance of the negotiation of the next CBA, by about 50 or 60 yards, as follows:

1. An ‘Independent’ Investigator is Not an Employee or the Corporation’s Existing Law Firm: The long hard glare of talk show and other publicity has thoroughly exposed for public view the silly trickery associated with the appointment of an “independent” investigation which is, actually, not at all independent, but just conducted by someone who is not an everyday employee. Ted Wells’ investigation was not only completely lacking in independence (since his firm represents the NFL), but was as much of a put-up job as the notorious (and widely ridiculed) “independent” UNC academic investigation conducted by former Governor Bob Martin. This is all to the general good, because it might encourage pro and college sports business managers to stop this trickery, but Goodell has run the NFL backward on this one.

2. A ‘Gate’ as a Lesson-Maker: –– This is Better Than Judge Judy: The NFL has just succeeded in thoroughly convincing the great unwashed masses of NFL viewers (and non-NFL viewers) that no self-respecting corporation or league would ever favor a collective bargaining agreement which excludes completely neutral arbitration — even though the current CBA provides, as Judge Berman made clear, a decidedly un-neutral arbitration framework. The public, in some ways, is now going to be a part of the next CBA negotiation, worried that a “fair” (read: neutral) process must be put in place.

3. The Forgotten Judge Who Ruled in Brady’s Favor: There is a forgotten judge in all this Deflategate chronology, and he was an employee of the NFL. And he ruled in Brady’s favor. This was the referee who discovered that the footballs had briefly, and without explanation, disappeared for some short minute at half-time. He considered his evidence and thought about it quickly. First, he knew the context: that the QB’s had, in 2006, been given much more discretion in selecting the balls to be used while on offense, and that this change had been enacted, if not pushed, by the league, in order to: 1) inflate QB passing performances, and scoring, in order to keep fans entertained; and 2) thereby burnish the ‘superstar’ status of league quarterbacks — to similarly build fan interest, loyalty, and entertainment.

He felt the footballs and, being a fellow who has been around footballs all his life, knew that nothing significant had occurred. Finally, he thought to himself: why in the world would anyone in the NFL want to set up some ready avenue to call into question the integrity of its star quarterback – when there’s no ball-inflation problem? (He may have also thought to himself: there’s more damned pissant midget-wrestling that goes on, minute-by-minute, at these games, and I can’t be chasing after every little dust-puppy.).

So the ref ruled from the bench: No harm, no foul — Play Ball! He didn’t even bother to write a decision — or even mention it to anyone! This so-called deflation ‘problem’, at this first, immediate adjudicative level, didn’t even warrant a second thought from the ref.

4. Rule 46 ‘Conduct Detrimental’ is Going to Get Narrowed at the Next Negotiation: The NFL runs a Glamour Factory, in which it carefully crafts players images to accord with some hard-to-define public expectation. It’s beyond me why the American public apparently badly needs to believe that the fellow who scored two touchdowns last night never misbehaves, but the league certainly not only worries about that, but acts upon it, in the form of loopy, Draconian ‘disciplinary’ decisions by Roger Goodell — all of which all get shot down by Big Foot, much smarter, Federal Judges or independent arbitrators. Players will want, at the next contract talks, to limit the commissioner’s power to discipline to those instances where the criminal law has convicted, while the league will want wide-open commissioner discretion to discipline. By going after Brady, and losing so haplessly, the league has helped move the public toward the player’s side, in favor of imposing some rational limits on that league power.

5. The Public Now Knows that Roger Goodell is a Squirrel in the Headlights, Darting Deperately to-and-fro’, and Chasin’ Dust-Puppies.

This has all not gone well for Goodell the Squirrel, and he’s right now at high risk of getting fatally caught where the rubber meets the road. The public will, at the time of the next CBA negotiation, be ‘at the table’ to an extent not seen since Reagan shut out the air-traffic controllers in ’81 — and that public has been moved to favor the players, through Goodell’s wrong-way, darting-squirrel dashes and dust-puppy chases, while Goodell has run his NFL backward to its own 1-yard line. 

As that ref must’ve asked himself in that locker-room at half time: why in the world would anyone in the NFL want to set up some ready avenue to call into question the integrity of its star quarterback – when there’s no ball-inflation problem?

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Why the Big Ten Conference Needs to Honor Bump Elliott

Bump Elliott is a unique man, solid, with a low center of gravity, a winning smile, and a persona which draws people to him. And

Coach Bump Elliott and All-American halfback Bennie McCrae

Coach Bump Elliott and All-American halfback Bennie McCrae

a fantastic football player, with his brother Pete, on Michigan’s ‘Mad Magicians’ of the late 1940’s.

He also has stronger ties with the more Big Ten schools than any person — academic or athletic — in history. He enrolled in the Marines just before his 1943 high school graduation in Bloomington, Illinois, and was assigned to the V-12 Navy College Training Program at Purdue, where he played halfback and lettered in football, baseball and basketball in 1943-44, before being called up to active duty in China in late 1944.

After the war, he enrolled at Michigan, where he starred as the Big Ten’s most valuable player, and All-American, from 1946 – 1948, on a Fritz Crisler-coached team which some say was Michigan’s best ever.

After graduating, he served as an assistant coach at Iowa, Michigan, and Oregon State, before being appointed head coach at Michigan in 1959, where he served for ten years, winning the 1964 Rose Bowl with a team which included 12 players who would later play in the NFL.

In 1970, he began what would be a 21 year career as Iowa’s Athletics Director, during which time he hired and oversaw perhaps one of the most coaching “trees’ ever generated at one school: Vivian Stringer, Hayden Fry, Olympics coach and legend Dan Gable, Lute Olson, and Dr. Tom Davis.

Bump passed through Purdue, for a year. He was a Michigan legend, as coach and player. And he had perhaps as much impact on Iowa athletics as anyone has ever had while at Iowa.

More important: I don’t know if you will ever find anyone who wouldn’t say that he was top-drawer. He had a knack for gathering fundamentally decent, principled and highly competent people around him. (There’s a great old story about his trip from Ann Arbor by car, to Beaver Falls, Pennsylvania, to recruit high school phenom quarterback Joe Namath. As the story goes, Bump and an assistant didn’t find Namath at home when they arrived there, and drove downtown, only to have someone point out Joe Namath, sitting on the hood of a car, drinking a beer. Bump never bothered to stop — just turned the wheel around and headed home.)

Bump Elliott was the sun, and people loved being around him. The Big Ten will never see another like him, and needs to recognize his impact, with a Bump Elliott award.

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Knight Comm. Hearings: NCAA Student Rep Gushes That He’s Lucky to Get Invited on the ‘Field Trip’

I write this with some trepidation, since my comments will be seen as critical of a “student” representative to the NCAA.

National – Collegiate – Athletic – Association?” If you had just arrived from Mars, perhaps you might have first guessed, from the name alone, that the NCAA might be some kind of governmental body. It’s not. The NCAA is a voluntary, unincorporated association. And, at least partially because of its professed fealty to its own notion of amateurism, the NCAA is categorized under the Internal Revenue Code as a not-for-profit, and pays no taxes on its income.

Your Martian assessment of the name might also have caused you to deduce that the NCAA members are all of the U.S. college students who play sports, including on-campus intramural and club sports. Or, alternatively, all the college professors who play — or teach — sports. Or, perhaps, even, all of the fans of college sports. None of these guesses would have been correct.

453,447 non-members: In fact, the 1,066 NCAA members are the colleges and universities themselves (and affiliated associations and other educational institutions.) The NCAA cites a “record-level” of 463,202 “student-athletes” who participated in NCAA championship sports in 2012-2013, but none of these “National”-in-scope, “College”-attending, “Athletic”-types is allowed to be a member of this “Association” called the NCAA. That makes 453,447 non-members.

The NCSMA — National Collegiate Sports Managers’ Association?: The NCAA framework does include limpid ‘student-athlete advisory committees’ on each campus, meant “to provide insight as to the student-athlete experience” and “input on the rules, regulations and policies that affect student-athletes’ lives.” But those players are not only denied membership status; they have long been deprived of significant voting or decision-making authority, and serve on those committees as unpaid volunteers. The NCAA leaders even, apparently, put a ‘muzzle’ on these SAAC students; according to one SAAC member in 2014, the NCAA wanted “to filter any and everything we say/do,” monitored SAAC members’ social media accounts, and required that all reporters contact the NCAA before speaking with any SAAC members. Probably as a direct result of rising public and player outcry about NCAA exploitation of athletes, along with the numerous legal actions which now threaten the NCAA’s structure and hegemony, in late 2014 it created a forty-person governing Division I Council, which includes, for the first time, three students with voting rights.  Also, in February 2015, the NCAA’s Division I Council recommended the creation of seven new standing committees, with each committee having one voting student representative, drawn from the Student-Athlete Advisory Committee.

This is the context. At the May 19, 2015 Knight Commission gathering in Washington, there appeared one Kendall Spencer, who apparently is the head person for the national SAAC. It is not clear how he achieved this status; nor is it exactly clear whether he has been, during this past school, a ‘student-athlete’, since internet entries suggest that he last competed as a track and field athlete for the University of New Mexico during the 2013-2014 school year.

I will assume that Mr. Spencer was, at the time he delivered his remarks, a ‘student-athlete.’ But I will nonetheless suggest that Mr. Spencer fell somewhat short of his duty in these circumstances. He appears a hale and well-met fellow, with felicitous instincts toward those with whom he has encounters.

But Mr. Spencer — who is, by any measure, an adult, fully capable of conducting his own affairs, and the affairs of others who he purports to represent — approached these serious affairs in Washington as a mere ingenue, thrilled to have garnered the attention and even grace of those NCAA higher-ups who have allowed him into their rarified rooms. Here is Mr. Spencer, gushing: this is “Great — the student-athlete gets to know what goes on behind the scenes. This is great!”

Mr. Spencer spewed more platitudes: [we need to] “Help our student-athletes get the most that they can out of their college experience,” and then offered that [we are] “really looking at our SAAC committees.”

Then, in a burst of truthfulness, Spencer admitted that the SAAC committees are “focused on community service.”

Drilling down, as they say, Spencer then boldly suggested that “we’re looking at an overall changing model,” and “focusing on that education piece.”

This is the national head of the Student Advisory Committee at the NCAA.  The performance, for anyone with intimate knowledge of both the history of the NCAA and sector-based bargaining, was appalling, as if Mr. Spencer was thrilled merely to have brought along on a sixth-grade field trip.

Fortunately, I was not the only one listening to him who was offended to this ‘Gidget Goes to Washington’ attitude displayed by the NCAA player’s one representative at the Knight hearings: one woman, during the time allotted afterward for audience questions, arose and asked Mr. Spencer, in so many words, whether he would take any position on any issue at all?

Mr. Spencer, it appears, did no preparation at all for his speech at this national gathering, and got up and tried to bullshit the attendees. Contrast this presentation with the one given by Notre Dame AD Jack Swarbrick, with whom I have many disagreements on issues of substance, which reflected not only Swarbrick’s fine intelligence, but the fact that he respected his national audience by giving them an extremely thorough, but also well-organized and very well-reasoned  presentation.

And Spencer came to the dais with a fundamental shortcomings: he represents the non-revenue sport athlete. If the NCAA were in the habit of dealing from the top of the deck (which it is not), it would have insured that a “revenue” player — whose performance effort is at the hub of the NCAA’s multi-billion dollar empire — would be designated as the SAAC national head. Mr. Spencer, as a non-revenue player, staked out no positions on any of the many pressing issues which are forcing change upon the NCAA. Perhaps Mr. Spencer should recommend someone like Simon Cvijanovic of Illinois as his replacement.

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NCAA VP Lennon Unveils NCAA 2015 Euphemism-of-the-Year at Knight Comm.: “Being College Eligible”

The Knight Commission met in Washington DC this past week. This is a body of experts and academics dedicated to leading college sports reform.

The biggest news came from NCAA VP Kevin Lennon, whose pedantic, humorless presentation bordered on the incoherent. But a few of  his words were revolutionary. Lennon unveiled, for the first time, the NCAA’s brand-new 2015 Euphemism of the Year: “Being College-Eligible.”


Though I was caught short when I heard him mention this new term, and thereafter tried to pay close attention, I still have no idea what it means — because Lennon showed no interest in explaining it.

“Being College Eligible” is, I might guess, somehow vaguely related to the NCAA’s 2014 Euphemism of the Year:  “The Collegiate Model.” NCAA executives pulled this one out of their gunny-sacks about a year ago, and I’ve heard it so many times that I now imagine the instruction (from NCAA lawyers and PR people), atop every NCAA speaker’s ‘Talking Points Memo’:  “REMEMBER, STOP USING THE TERM ‘AMATEURISM — SUBSTITUTE THE TERM “THE COLLEGIATE MODEL.” And no one from the NCAA or elsewhere has ever defined or explained this 2014 “Collegiate Model” euphemism.

Though Lennon intoned that “there’s no question that the public depends on our member institutions for providing the clarity and the guidance in defining this concept of amateur sports,” Lennon never provided any such clarity or guidance. He never explained either of these the 2014 or 2015 Euphemisms — though he made sure to remind his audience, like some Soviet-era bureaucrat,  that it is important to understand, “what it means to be college eligible, based on your experiences either before  college or in college.”  These are, after all — according to Lennon — “foundational principles of what it means to be college eligible.” Continue reading

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Illinois’ Simon Cvijanovic Has Asked the Athletics Gorilla to Dance, And Needs to Think About His Records

Illinois football lineman Simon Cvijanovic has moxie. And courage. By speaking publicly about Illini head coach Tim Beckman’s habit of forcing players to play hurt (and other charges), Cvijanovic has challenged both college football’s Omerta code and its ‘Tough Guys Play Hurt’ ethic.

But Cvijanovic should understand that, in many respects, he has just asked the gorilla to dance — the gorilla which is the business of big-time college sports at Illinois — and that gorilla may just make Cvijanovic dance more, or in different ways, than Cvijanovic might anticipate.  And he should not be deluded into thinking that AD Mike Thomas’ investigation by an outside lawyer will — necessarily — be independent, thorough, or accurate. It might be, but it might not be.

A player in Cvijanovic’s position needs to think through his next steps. He needs to weigh whether he wants to partially or completely revoke his FERPA and HIPAA releases. The FERPA release, which he signed as a part of the deceptively titled ‘Student-Athlete Statement’ (which is much more than just a ‘statement’; it’s a breathtakingly broad surrender to the school of some player fundamental privacy and other rights), gives anyone within the athletic department access to his student records, including academic records. (As I’ve previously indicated, there are no good reasons why any athletic department should have access to a player’s academic records, and the entire ‘Academic Glamour Factory’ which the NCAA and schools have constructed around every player would crumble if all players just refused to execute that FERPA waiver.)

In making any decisions about revoking his FERPA waiver, though, any player should consider how first to use the FERPA statute to protect himself. And he might want to recall the events at Rutgers which led to basketball coach Mike Rice’s firing — which included the fact that all videos of team practices had been requested and produced to a former coach, as a part of a lawsuit that coach had filed against Rutgers. Those videos confirmed Rice’s physically abusive behavior toward players, just as practice videos at Illinois might help support Cvijanovic’s claims.

Cvijanovic, it appears, doesn’t have the benefit of some similar such simultaneous lawsuit against Illinois which might get him access to probative practice videotapes But he has a credible argument that the Illini practice videos are actually his ‘student records’ under FERPA. This theory has not been, as far as I can tell, explicitly tested, but is ironically supported by the fact that, for the last twenty years, almost all big-time athletic departments have habitually denied many FOIA and other requests for information by claiming an extremely broad definition of ‘student records’ under FERPA — the kind of broad interpretation which would also readily  support any player claim that he should be given access to all practice videos.  And it would be more than entertaining to force the Illinois athletic department to contend that records (videos) concerning college athletic activities are not records concerning students.

Any player concerned about his injuries should initiate a FERPA and HIPAA request for his student records and medical records, to check the file for accuracy. Does it include all athletic-related documents? Do the medical records contain all notes from all trainer consultations, however frequent or minute?  And the sooner these requests are made, the more clearly the school or staff are prevented from adding or removing documents as things heat up. The student record requests, under both FERPA and HIPAA, also should include access to all emails which pertain to the player — whether generated by academic staff, coaches, trainers, athletic department personnel, or other school employees.  Obviously, emails by Beckman or his staff might be the most probative — though Beckman has probably followed the lead of other big-time coaches, like Rich Rodriguez, when he was at Michigan, who refused to even have a university email account (!)

There are other issues, too complex to describe here, which involve judgment calls as to whether the player wants to partially or completely limit the scope of his existing FERPA waiver and HIPAA authorizations given to the school. At a minimum, any player should understand the waivers which he signed within the ‘Student-Athlete-Statement’ are easily interpreted (believe it or not) to give those waivers continuing effect — forever. 

See this language from the introduction to the SAS:

Effective Date: This NCAA Division I Student-Athlete Statement/Drug-Testing Consent form shall be in effect from the date this document is signed and shall remain in effect until a subsequent Division I Student-Athlete Statement/Drug-Testing Consent form is executed.”

Any player probably wants to specifically revoke those waivers at the time he graduates or departs from the school.

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Brady Retains Kessler: The NCAA Sports Tectonic Plates Just Shifted, and Earthquakes Will Follow

When Walter Anderson, chief NFL refereee, ignored the alleged ‘disappearance’ of the NFL footballs just before the Patriots-Colts semi-final game, he didn’t know that he was the trigger.

But he was. Anderson just kept going — he knew, and his actions then told us, that all this nonsense about measuring and logging the precise inflation of game footballs was just that — nonsense — because Anderson and his other referees would handle those balls more than any player on the field. Anderson showed us that this whole data-based emphasis upon measurement was entirely unnecessary. He knew, just like any worker who handles piece work items — fish, or frozen baked goods, or chicken parts — that he could quickly tell if something was awry with the ball inflation. The measurement of ball inflation, Anderson’s actions told us, was just a bureaucratic requirement which had nothing to do with the reality of managing an NFL game.

So Anderson ignored it. He didn’t care that somebody might’ve, for the first time in 19 years, according to the Wells report, absconded with the bag of balls. IT DID NOT MATTER.

Let’s leave Walter for a second, and wonder why the NFL has silly procedures. For example, why keep secret from the opponent the whining of the other team about something which that other team believes is a violation of NFL rules?  If the Colts, or John Harbaugh of the Ravens, suspects that the Patriots are fudging: why conceal that from the Patriots?  Go right over to them, tell them: “hey, the other team thinks you have a habit of deflating the balls — cut it out — or I have to do something!”

That’s all the NFL had to do. Instead, the NFL has erected a ritual which allows those petty complaints to remain undisclosed to the other side! And if the Refs disclosed, immediately, to the other side the whining complaints by their opponent, then it would discourage petty complaints, but also allow immediate correction of any ‘borderline’ ethical practices which might have been ingeniously developed by a team.

But Roger Goodell, who looks increasingly like an oily insurance salesman, has no comprehension of these sorts of nuances.

And because Goodell is so far in the hole, he hires an outside High Establishment lawyer, Ted Wells, to perform an ‘independent’ investigation of the Pats’ alleged propensity for deflation. And Wells gets into a high dudgeon when Tom Brady refuses to produce his personal cell phone records, or excerpts, for Wells. Wells has not read the Massachusetts statute which makes all such records — if they are at all employment related — confidential and part of Brady’s personnel file — and also fails to recognize that the records are personal to Brady and not subject to mandated production to Wells.

The de facto major rule to be gleaned from Wells’ tome, in fact, is that any NFL player must now recognize that his personal cell phone records are, according to the all-powerful NFL, tools to be seized and used by the NFL to investigate the NFL player-employee. This is important, and a radical proposition. Brady resisted this wild notion, and Wells burned him for resisting.

Brady, through these events, got pushed too far. Now the NFLPA has been pushed to retain Jeffrey Kessler to represent Brady on his appeal of the NFL’s 4-month suspension of Brady.

The earthquake now rumbles. The NFL owners have pushed their Brady-icon, who will never back down, and also remembers slights, all the way over into the camp of the downtrodden NCAA player. Kessler, who represents those NCAA players in their antitrust challenge of the NCAA’s ‘scholarship’ cap on player pay, is now meeting with Brady on a daily basis.

Brady will help the NCAA players, in their effort to upset the NCAA’s exploitative arrangement with its those players. This is an explosive match, between Brady and Kessler. Watch out, NFL. Watch out, NCAA. Brady and Kessler are now working together. And I’m putting my money on Brady and Kessler.

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Michigan’s New Concussion Policy Pays Only Lip Service to ‘Medical Independence’ From Athletic Department

Last month Michigan revised its written concussion protocols, in response to the September 2015 Shane Morris controversy. Those documents correctly exalt the state-of-the-art principle that medical, not athletic, personnel should be the final decision-makers regarding sideline concussion management issues. This principle has already changed sideline behaviors: a decade ago, coaches and trainers, both employees of the athletic department, had authority to make all decisions. New policies switch that authority to medical personnel who are not employed by the athletic department —  and Michigan’s policy makes much of this ostensible need for medical independence. This major change in sideline protocol is based upon a recognition that college football’s Mad Bulls of Triumph and Profit have often compelled a coach or trainer to allow the drive to win and make money to override player safety concerns.


But Michigan’s new policy fails — without explanation — to apply this state-of-the-art ‘medical independence’ principle in one very important respect.

There are two major two categories of concussion-management decisions required on the sidelines: 1) Removal-from-Play; and 2) Return-to-Play. Michigan’s policy makes clear that the sideline doctors have the final Return-to-Play authority: after review or testing of the player on the sidelines, it is the physician’s decision as to whether the player will be held out. Disagreement between doctor and coach? — doc wins.

But the Removal-From-Play policy abandons ‘medical independence’: the ‘Spotter’ placed up high (for the first time, after the Shane Morris incident), will have access to replay video-cameras, and radio communication with sideline personnel, but he is not a physician, and he is not employed by an independent medical entity. He is an employee of the athletic department (with certification as an athletic trainer), and is also an Assistant Athletic Director. This is anything but medical independence from the athletic department.

ANN ARBOR, MI - SEPTEMBER 27:  Quarterback Shane Morris #7 of the Michigan Wolverines is helped off the field by Ben Braden #71 during the fourth quarter of the game against the Minnesota Golden Gophers at Michigan Stadium on September 27, 2014 in Ann Arbor, Michigan. The Golden Gophers defeated the Wolverines 30-14.  (Photo by Leon Halip/Getty Images)

ANN ARBOR, MI – SEPTEMBER 27: Quarterback Shane Morris #7 of the Michigan Wolverines is helped off the field by Ben Braden #71 during the fourth quarter of the game against the Minnesota Golden Gophers at Michigan Stadium on September 27, 2014 in Ann Arbor, Michigan. The Golden Gophers defeated the Wolverines 30-14. (Photo by Leon Halip/Getty Images)

This decision to man the ‘Spotter’ position from within the Athletic Department is all the more troubling because the Removal-From-Play decision ( and the entire concussion management process) are so consistently subverted by one relentless factor: the propensity of players to ‘play through’ and ignore, or even hide, any concussion symptoms.  Ali Krieger, for example, a member of the U.S. Women’s National soccer team who has experienced recent severe concussion problems, admits that the player will “always want to play and then make it worse.” And  Michigan’s September 2014 mis-handling of Shane Morris after a high hit while he was in the pocket was an excellent example of this unhealthy propensity on the part of the player to ‘just keep going’: after Morris was hit hard in the neck and lower jaw, he got up, wobbled around for a full twenty seconds — while one teammate actually signaled to the sidelines that some replacement for Morris was needed — when Morris’ legs started to go out from under him, causing him to grab for a teammate lineman for support. Yet he was allowed to remain in the game, and ran another play before being taken out! (He was later re-instated to the game.)

And Removal-From-Play decisions are all the more important because the shell-shocked player who wants to remain in the game can often, after that first hit which wobbles him, ‘shake it off’, keep his mouth shut, stay in the game — and no one will ever know.

Morris’ Removal-From-Play was the Glaring Problem, not Return-to-Play: But there has been no evidence that the later re-insertion of Morris into the game was the result of any violation of state-of-the-art Return-to-Play standards. (Yes, the later diagnosis of concussion, on Sunday or Monday, suggests that Morris had symptoms on the sidelines, but no information has been released to support that conclusion.) So the glaring defect in Michigan’s Concussion protocols was the failure of its Removal-From-Play policies. —  yet Michigan’s concussion task force  has produced a Removal-From-Play standard which ignores the ‘medical independence’  principle.

And Michigan’s Removal-from-Play new policy suffers from three other defects.

1 ‘Possibility of Concussion’: First, the policy fails to explicitly and repeatedly emphasize that the decision-making standard, for Removal-From-Play, probably should be significantly higher than the standard for ‘Return-to-Play. The Removal-From-Play standard must emphasize the need for removal where there is any possibility that a concussion has taken place. There are tremendous pressures, from that Mad Bull of Triumphs and Profits, to soften this standard;  after all, Shane Morris remained in the game for another play, and was then re-inserted later, and those events all occurred at a point, some 11 minutes from the end of the game, when Michigan was desperate to mount a comeback from a 30-7 deficit.

2. Spotter Calls the ‘Fellow’? — A New Barrier to a Quick ‘Get Him Out of There’ Decision:  Michigan’s policy regarding the communication from the ‘on-high’ Spotter, down to the sidelines makes no sense. The radio ‘call’, according to the policy, must be made to the ‘Fellow’ doctor, not the primary doctor. Let me explain: a read of the policy makes clear that the sidelines are packed with more horse-handlers than Churchill Downs and, apparently, each of the neurologists has a neurologist “Fellow” (which means he is at Michigan medical school on a “Fellowship”) working with him; this is, then, a fancy term for a doctor who is, despite his advanced other degrees, still in (very advanced) training. And this piece of the new Michigan policy envisions that this ‘fellow’ doctor will always be ‘near’ his supervising senior doctor, and will be able to adequately communicate with him.

But this odd set-up undermines the entire reason for placing the Spotter up high, by generating unnecessary delay — when time is of the essence. Suppose, in the Shane Morris example, the Spotter saw what was evident to most people — that Morris was incredibly unsteady on his feet — and radio-called down to the sidelines his conclusion that Morris must be immediately removed. That radio-call, according to the new policy — must go to the ‘Fellow,’ who then has the responsibility to relay the information to his supervising doctor.  Let’s just assume also that the Fellow (and his ‘Supervising Doctor) were not (as is common) able to see the Morris hit or its sequelae, so that the Fellow is not only surprised, but also concerned by this call from up-above, because Michigan is down 23 points with only 11 minutes left in the game — and everyone in that stadium wants a comeback led by that quarterback. So he turns to his supervising Doctor (assuming that doctor is handy, which seems a bit of a jump), to then explain to that supervising Doctor the facts relayed by the Spotter. The supervising Doctor has the same surprised reaction, and the same c0ncern about an order to ‘pull’ Michigan’s quarterback at this late, dire stage in a hoped-for comeback. And this all takes time — in a situation where the next play will, in most case, quickly unfold. The policy, then, inexplicably creates an unnecessary communication hierarchy, which itself causes delay. The Spotter should have the duty and authority to communicate immediately with the supervising Neurologist to get the player off the field, if necessary.

3) The Michigan policy fails to spell out any standards which the Spotter must apply in making any recommendations or decisions about any need for Removal-From-Play. (Some of this need for clear standards might be satisfied by a sort of ‘bench memo’ of videotape examples of past plays where experts agree immediate removal is required.)

4) The Michigan policy should empower the Spotter to make his own quick but final ‘Get Him Out of the Game’ order.

In summary, the Spotter should be independent from, and not employed by, the athletic department; equipped and required to communicate directly and immediately with the Chief Neurologist on the sidelines; and authorized to make, on his own quick ‘Get Him Out of the Game’ order. And any Removal-From-Play decision should be based upon a decision that the ‘possibility of concussion’ appears, using standards which are explicit and widely available.

Particularly because of the Morris incident, but also because of Michigan’s dual ‘flagship’ status as a major college football power and pre-eminent medical center, Michigan’s new policy regarding Removal From Play misses the mark. As it now stands, Michigan’s ostensible commitment to the principle of ‘medical independence’ has lost out to the de facto Mad Bulls of Triumph and Profit.

If there exist substantive reasons, according to the concussion protocol drafters, as to why they chose to use a Spotter who is an athletic department employee, who must call to an intermediary medical person on the sidelines, and who does not have ‘Get Him Out of the Game’ decision-making authority, then the drafters should explain why those choices were made. And the policy needs more explicit standards as to the kinds of  ‘triggers’ which require exercise of Removal-From-Game authority.

Smaller schools and high schools will ‘benchmark’ their concussion-management policies against Michigan’s. Michigan needs to fix these defects.

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The College Sports Pharaohs’ Talking Points: Protecting Their Dying Protectorate

[I am racing to finish the book I am writing on NCAA sports, and really should be doing that work now. But the recent spate of posturing by the Pharaohs of College Sports Business Management have forced me to come out of my cave, and post here.]

The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.”— Antonio Gramsci


If you are Big12 Commish Bob Bowlsby, or the BigTen’s Jim Delaney, or UNC AD Bubba Cunningham, or Texas AD Steve Patterson — or NCAA President Mark Emmert, or new VP Kenner, you ‘attend’  many of the same meetings or conference calls — and you also get many of the same lawyer’s briefing memos, meant to maximize and protect the NCAA’s legal and financial position. These imagined ‘Talking Points’ memos (protected by attorney-client privilege, so they’ll never see the light of day) have resulted in repeated public statements by these Pharaohs of the Business of College Sports, which are themselves the kinds of ‘morbid symptoms’ which appear as an old system is dying and a new one cannot immediately be born.

These Pharaoh Talking Points have four themes: Continue reading

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Kick the NCAA, Athletic Depts and Coaches Out of Academics: Revoke Players’ FERPA Waivers


Most NCAA critics insist that the NCAA needs to be much more vigilant about overseeing player and school academic performance. They have it upside down. The NCAA, school athletic departments and coaches all need to be completely removed from any academic oversight or even access. This is consistent with the NCAA current de facto primary role as Central Sports Business Manager, and also consistent with the vigorous player academic privacy protections established by the 1977 FERPA statute.

NCAA’s Founding Mission Was Player Safety: Back in 1905-’06, the NCAA was founded due to intense pressures all around, to make drastic changes to improve college football player safety. (That was the only football back then — there were no ‘pro’ leagues.) The preceding ‘flying-wedge’ decade had mauled and killed too many. President TR wielded his big stick (probably because his son had had his football nose broken at Harvard, and his Stanford nephew had two football leg breaks), and directed that the Big Three (Harvard, Princeton and Yale — sort of the Alabama, LSU, OSU of that day) lead the way toward the NCAA’s formation. And the explicit primary mission of the new outfit was to protect the “welfare” of the athlete. (They didn’t have ‘student-athletes back then, since the NCAA hadn’t yet entered the propaganda business.)

NCAA Adopts Home Rule as Its Operating Principle: But the new NCAA had a problem attracting members. So they quickly landed on the same solution that the AARP arrived at almost a century later: demand nothing of your member, except a small financial contribution and — whatever you do — insist that you will do nothing to interfere with the member’s daily life or, god forbid, autonomy.  That way, your membership will grow, as the NCAA’s did, and as AARP’s has. You can see the NCAA’s devotion to this Home Rule doctrine expressed repeatedly during the NCAA first two decades: an important early ’20’s document, for example, insisted that members abide by 10 rules — but the tenth rule was, basically, that the member school could create and abide by whatever rules it wanted. Home Rule, indeed.

Now, the Home Rule Doctrine is Applied by the NCAA Only When It Needs to Protect Its Tsunami of Cash: Fast forward now, 100 years later, and you will see the thoroughly mercenary NCAA careening back and forth, up and down, and all around this Home Rule doctrine. It’s hard, if you’re one of these modern-day Pharoahs of College Sport Business Management, to remember where you left your principles. Or if you ever had any.

The NCAA now invokes the Home Rule doctrine, not because of devotion to the principle, but just to help it maintain unobstructed and unregulated control over its tsunami of cash. Here is the primary example:

The NCAA Applies Home Rule to All Issues of Player Health and Safety —  The NCAA Has Had to be Dragged, Kicking and Screaming, to Pay Any Attention to Player Safety: For example, though the NCAA’s founding rested upon its primary mission of protecting the health and safety of the player, the NCAA now has to be dragged, kicking and screaming, to have anything to do with player safety. There was no NCAA medical director until three years ago. (And Medical Director Hainline’s recent assertion that his primary concern is player mental health would make me very concerned about his own mental health, were it not for the fact that this claim by Hainline fits very nicely with the NCAA lawyer’s instruction to him that, whatever you do, Dr. Hainline, do not go anywhere near standard-setting for concussions or other player on-the-field safety issues.)

The NCAA’s ‘hands-off’ Home Rule approach concerning player safety is a carefully crafted strategy to avoid legal liability for player injuries. The NCAA does not want a court dictating that, for example, a group or class of players or ex-players must be paid a substantial portion of the $1 billion dollars of annual NCAA income. As a result, it has followed its lawyers main advice:  do not set safety standards at the NCAA level, and do not collectively monitor or study safety issues, because those activities will only lay the groundwork for some allegation that the NCAA negligently set or applied such standards. Stay away, is the lawyer’s message — but continue keep mouthing the refrain about the NCAA’s alleged primary concern for the ‘welfare’ of the student-athlete’.

The advice is, in many respects, good legal advice. It just lacks any moral foundation, and directly violates the sole reason for the NCAA’s original founding. And the NCAA Pharoahs have slavishly followed this advice. As an example, look at the bizarre statement two years ago by the now-retired, but very clever, Mike Slive, of the SEC:  “We need to look closely at the NFL’s concussion-management practices” (!)  Home Rule, indeed, but hardly the words of a zealous protector of college player safety.

But the NCAA Rejects that Same Home Rule Doctrine When it Comes to NCAA Monitoring of Academic Standards and Performance:  Contrast this with the NCAA’s approach to academic oversight, whether monitoring APR, investigating courses and professors and grades at specific schools, or the long list of other academic topics which the NCAA purports to need to regulate. If the NCAA applied  ‘Home Rule’ in this area, it would have nothing to do with investigating or regulating individual school academic performance.

But although the NCAA has no business regulating individual school (or player) academic performance, such regulation helps the NCAA maintain the twin fictions that the student-athlete must be a student, and that he cannot be an employee because he is a student!

But The Entire NCAA Academic Monitoring Program Depends Upon a Forced Player Waiver of FERPA Privacy Rights: In summary, if safety oversight and monitoring is none of the NCAA’s business, then neither is academic monitoring.

But here’s the nub: the only reason the NCAA (and school athletic departments) can pragmatically have any role in academic oversight is that the player is forced to sign a FERPA waiver as a part of the (deceptively titled) ‘Student-Athlete Statement’ he is handed to sign before he initiates play each season. The 1977 FERPA statute reflects a federal mandate that all ‘educational records’ for each student must remain strictly and completely confidential. It works from a fundamental ‘Home Rule’ premise: the individual student ‘rules’ his academic ‘home,‘ and that ‘home’ must be kept very private.

The Player Has the Power to Bar Coach and NCAA Access to His Academic Records: Without the FERPA waiver which the player is forced to sign, both the athletic department and the NCAA would be forbidden to have any access to the player’s educational records. (Such “records” are defined very broadly by the statute.) In other words, if every player, come August 2015, refuses to sign that FERPA waiver, the NCAA — and, in most cases, the individual school’s athletic department — would have no access to any academic information concerning any student, and the NCAA’s oversight would grind to an immediate halt.

In this upside-down modern NCAA, then, the NCAA’s primary interest is in maintaining its control and power over the distribution and use of the tsunami of cash with which it has been flooded over the last two decades. To protect that interest, it chooses to apply Home Rule to leave safety topics to each member school — even though player safety was the NCAA’s first and primary function. And it then selectively chooses not to apply the Home Rule doctrine to allow its seizure of authority to actively monitor and collect data about player academic performance — even though neither the NCAA or the coaches have any legitimate academic function.

Obviously, collective revocation of FERPA authorization by all players is unlikely to occur, at least in the short term. But at least ponder the potential outcome: all schools would be left alone by the NCAA, and would repeatedly ‘cheat’ — just the way UNC has cheated for many years — on issues of player academic compliance and performance. More to the point, if the revocation of FERPA authorizations also barred coaches and athletic departments from any access to, or involvement with, player academic performance data, oversight and jurisdiction over those academics issues would revert to faculty and administration — where it belongs.

This would help end the academic charade by making plain to all that, as regards big-time revenue-producing players,their role as students is purely secondary, and that their status as students should not prevent them from being paid for their role as performers within those grand ‘institutional advancement’ tools —  football and basketball —  which are a central part of — not the academic, or even athletic departments — but the school’s development department.

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