NCAA Players Strike for Decent Insurance? No, Don’t Strike – Spat!

[Look for my new book, ‘Shamateurism,’ coming out soon, which shows why the big-time college player is an employee, economically castrated by the school.]

I have a proposal to significantly improve the lot of the football or basketball player at major (Power 5) schools which enter into contracts.with Nike, Adidas, or Under Armour – which means all Power 5 schools, because they all enter into such ‘All-School’ contracts.

A strike, as everyone knows from the threat by football players at Mizzou, would be the strongest, most effective tool. But the absence of a players’ union, or any effective, ongoing ‘player-group,’ combined with the ‘under-the-thumb’ power every head coach exercises over players, makes a strike unlikely and difficult to pull off.



So I have a simpler proposal. Don’t Strike – Spat.

Let me explain. First, as As Lou Holtz used to tell his player’s, “W.I.N. – What’s Important Now.” And the player’s WIN arises out of some First Principles for the conduct of everyday human affairs:

1) Safety First;

2) Eliminate as much risk of injury or damage as possible; and

3) For the risks which you cannot eliminate – buy insurance to adequately cover them.

The NCAA and Power 5 schools have, from time to time, violated all three of these principles. More recently, they have paid more attention to Principles 1 and 2. But their eagerness to continue to flout Principle #3 points out the player’s current WIN: the lack of school payment for longer-tail health and disability insurance. A longer-tail insurance covers, for example, not just medical costs for one year, post-injury, but 5 or 10 years. So for the player right now, this is what I call The Main Thing: the school’s duty to pay for solid, longer-tail (at least five years after graduation or departure from school) health and disability coverage for players.

Sure, there are plenty of other injustices which the player encounters, day-to-day, which cry out for change. The NCAA’s phony ‘no-pay-for-players’ scam needs to be exposed for what it is — payment in scrip — so that the players can then get a fair share of the income from their endeavors, and enjoy employee status. Sure, the risk of injury in football needs to be reduced. There’s dysfunction everywhere. But the players’ MAIN THING,, right now, is this lack of solid, long-tail coverage. It’s What’s Important Now.

Injuries are just a part of football and, to a lesser extent, basketball. Some can be eliminated, some can’t. The risk of injury, in fact, is probably a large part of what attracts viewers and gross income to football: spectators pay to see humans encountering risk. But those football injuries are actuarially predictable: experts can, with remarkable precision, project the nature and severity of injuries which will occur, just as they do for every human job and activity (so that the insurance industry can, based upon those actuarial’ predictions, write and price their policies.) The Power 5 conferences (or NCAA) can easily go buy good, longer-tail coverage. They just don’t want to pay for it.

In the 1980’s, SNL cast member Tim Kazurinsky was the central figure in a running skit called “I Married a Monkey,” in which his ‘wife’ was played by a midget chimp (which had ‘starred’ as Bonzo, by the way, in Ronald Reagan’s 1950’s movie, Bedtime for Bonzo.) But chimps can be volatile and, occasionally, dangerous and, in one dress rehearsal, the hair on the chimp’s arms raised-up and, though chained to the bed, the chimp became increasingly violent, jumping up and down and attempting to attack the terrified, fleeing Kazurinsky. It was only later, Kazurinsky said, that “I found out from a production assistant that [Dick] Ebersol [the show’s producer] was secretly taking out like massive amounts of insurance on me when I worked with the chimp!”

Ebersol massively insured his performer, Kazurinsky, against a known, predictable risk of serious injury. In contrast, the Power 5 schools, drowning in new money from ticket sales, shoe and apparel deals and skyrocketing television contracts, and engaged in two-decade long frenzy of construction of unnecessary buildings fit for Nero, refuse to, not just ‘massively fund’ insurance for players who daily encounter known, significant, and recurring risk of injury — they (in most cases) won’t fund it at all!

Instead, these Power 5 pikers force their players to come to their stage with their own insurance! It’s a BYO-insurance game! Imagine Ebersol having required Kazurinsky to go buy his own insurance! The school, in most cases, insists that its own insurance policies must only be ‘secondary” —  meaning the school picks up a tiny percentage of the entire cost (usually the co-pays). Basically, for insurance purposes, the school all of a sudden treats its injury-prone football-player ‘student-athlete’ as only a student.

(Sure the schools finally started coverage for ‘catastrophic’ injuries, back in 1991, after much public outcry, but those lifetime-wrecking injuries, often involving quadriplegia and paraplegia, represent a tiny percentage of all football injuries.)

So why did Dick Ebersol ‘massively’ insure Tim Kazarinsky in the chimp skit, but Power 5 AD’s don’t insure their performers? Good question. Such lack of insurance was common in the United States a century ago. It’s still common in the Third World. But, in 21st century America, the lack of such insurance has to be labelled for what it is: barbaric.

Barbaric? Sure. In fact, most of these Power 5 schools insure their inanimate, inert, non-human assets – buildings, intellectual property, cars – much much better than they do their human player-assets. That’s barbaric. As just one example, the University of Oregon bought insurance several years ago which would pay that department benefits if their assistant football coaches ever became entitled to bonuses, pursuant to their employment contract, for winning a large number of games! Insuring against having to pay money! — and they won’t pay to insure against human physical injury? That’s barbaric. In the words of the great Katie Nolan: “Christ! — What matters to you guys?”.

The Main Thing – this absence of solid, long-tail coverage for football and basketball players – is the most significant glaring defect in all of the wacky, dysfunctional college sports business model. So how do the players fix The Main Thing?

There are those stories about Jerry Tarkanian’s UNLV team planning to refuse to play, after they beat Duke in the 1991 March Madness semi-finals – but then they lost to Duke, and it never happened. And Fox Sports commentator Charles Davis told a great story, in 2015, about his experience as a mid-1980’s Tennessee Vol running back:

“Remember Dick DeVenzio, academic All-American guard? He was very big on college athletes being paid,I spent two summers worth with Dick, and we were actually going to go on strike in a football bowl game. We were going to sit down for our rights to get money. Our trainer somehow got wind of it, and he came to me and said,’are you really going to go on strike? And the first thing I thought about,” Davis continued, “was, ‘What? Playing Time?! [So I said] “Not at all sir, no way.”

As Davis’ story suggests, strikes are huge undertakings for players, who have little leverage or bargaining power when they run up against the all-powerful head ccoach. But  there’s a simpler option. Don’t strike – Spat.

Spats are worn by marching band members to cover the entire shoe and lower ankle with white, so that the image of the simultaneous movement of hundreds of marching feet is striking. In that setting, spatting is a good thing. But for Nike, Adidas and Under Armour, all of whom supply the schools with shoes and apparel, spatting — defined by them in their contracts as the covering over of the shoe-seller’s distinctive promotional logo — is a bad thing.  But it is very easy to do, with a little bit of white or black ankle-tape.

Here, for example, is a pertinent portion of Nike’s November 2015 contract with University of Texas:

“[Texas] acknowledges that a principal inducement for Nike’s entrance into this Agreement is the exposure that the Nike brand receives through the prominent visibility of the Nike Swoosh Design logo that appear on the side of the football shoes worn by members of the football team [and such continued brand exposure is of the essence of this Agreement [and] the ‘polishing-out’, ‘spatting’, or taping or in any way altering NIKE football shoes in any manner so as to cover or obscure any portion of any NIKE Logo is inconsistent with the purpose of this Agreement … and a consistent pattern of spatting in any Contract Year is a material breach of this Agreement”

Material breach? That’s big stuff! Spatting, you can see, is the biggest of no-no’s for Nike, Adidas and UA — even though the NCAA’s entire system, and its television and video- marketing machine, are built atop the preposterous NCAA Big-Lie that the logos on uniforms are not promotion — a lie which must make the Nike fellows giggle, as they write their iron-clad school contracts to protect their primary interest: the display of logos for promotional purposes. Those contracts make explicitly clear to the delusional NCAA and school business managers, and the public: the display of the logo is the ‘essence of the agreement” to pay hundreds of millions of dollars to the school, and a ‘bargained-for consideration’ at the very foundation of every such contract.

This other portion of the Nike-Texas contract reveals just how important the logo-display is:

for each game in which 5 or more shoes [not pairs, but individual shoes] appear on-field (in game action) polished-out, spatted, or taped for any reason [excluding medical reason], Nike shall have the right to reduce annual scheduled Base compensation by $20,000 per shoe (in excess of five shoes) . . . up to a maximum of $100,000.”

$20,000 PER SHOE! Translated, this means that if only five players, wearing a total of 10 shoes, spat, then the school loses $100,000 of its annual compensation from Nike.

In addition, for repeated occurrences, Nike prescribes that “for each player that shall appear on-field with polished-out, spatted or taped footwear . . . after Nike has provided [Texas] with written notice of such occurrence, Nike shall have the right to reduce annual schedule Base Compensation by $30,000” for each such subsequent occurrence.”

Translated, this means that if, the following week, the same five players spat their ten shoes, then Nike can reduce the school’s base compensation by another $150,000. From just two games, this Nike claw-back’ from the school would total $250,000 — a $250,000 which would go an awful long ways toward solving The Main Thing. That is yuge money for the players.

But not for the schools. Texas signed a new 2015 $250 million 2015 Nike contract. Michigan signed a 2016 Nike contract worth $173 million. OSU’s was $252 million. Under Armour inked UCLA to a 2016 $280 million contract. So, for each of these schools, losing a jeezly $250,000, here or there: that’s peanuts. Peanuts for the school, yuge for the players.

More to the point, paying $250,000 in premiums for new health and disability coverage, by football programs which often gross over $100 million in one year, requires just a drop in that school’s bucket of gross income — but would help bring the player out of the barbaric, third-world no-insurance purgatory within in which he is now locked by the school.

And Ohio State’s contract raises an interesting angle for getting at The Main Thing. Nike is obligated to pay $1 million per year to an OSU ‘Student Life Endowment Fund.’ This fund is poorly defined, but clearly intended to spread Nike largesse to other, non-athlete portions of the OSU student body. This sounds good, until you realize that, if the OSU and other sports business managers and AD’s had a moral compass driven by the magnetic pull of the First Principles — Safety First, eliminate risk, and adequately insure against those risks which cannot be eliminated – then every new ‘found’ dollar would have been first directed to pay for decent, longer-tail health and disability insurance. That $1 million per year for OSU’s Student Life Endowment Fund — income predominantly, if not overwhelmingly produced through the labors of football and basketball players – should have been paid to solve The Main Thing lack-of-insurance problem. Alternatively, the money can come out of the new $20 million “athletic endowment for use at the discretion of the universiy,”. which Nike is funding for OSU. Found money, that is — perfect for long-term funding of top-of-the-line long-tail health and disability coverage for OSU football and basketball players. Perfect.

Spat to W.I.N.: So how does spatting help solve The Main Thing? Well, to be honest, my proposal suggests that the players probably won’t even need to spat. They only need to threaten to Spat. Inform the coach that, for example, 20 players intend to spat for a game three weeks away, unless the school takes steps to use – every year — some of the shoe/apparel money to solve The Main Thing.

Pick a number. At Ohio State, just say that you want that new, ‘found’ “Student Life Endowment’ $1 million to go toward an annual football player’s “Player Injury-Protection Insurance’ fund. OSU will be faced with a no-win situation: the prospect of widespread televised spatting will, they know, focus massive public attention upon the school’s failure to insure its primary human asset. In addition, the spat campaign is not directed toward getting ‘pay’ from the school – the player just wants to be responsibly insured, the same way the school insures its buildings – so that the campaign allows the school and NCAA to maintain their silly fiction that dollars must never touch the palms of the Econmic Virigns which the schools maintain that the players must appear to be. And the school will not stand to be embarrassed by this eminently reasonable, health-based spat campaign. In effect, the spat campaign tells the school: we want you to use some of the windfall which is gotten from the shoe suppliers to pay for the insurance you should have long ago procured, for all football and basketball players on the roster. And to avoid embarrassment, and the Nike clawback if a small group of player spats, the school — according to my reasoning — will voluntarily agree to switch that Nike money to pay for player longer-term health and disability coverage.

No strike. No union campaign. No nastiness. No fuss. Just a budgeting switch by an athletic department which wants to avoid embarrassment — and players get that good insurance. That’s the proposal. And if players on a number of Power 5 teams agree to do the same thing, a new trend: schools feel compelled to use ‘shoe money’ to fund top-tier insurance for footballa and basketball players..

As it stands now, the player’s insurance package paid by the school is roughly the same, or worse than, the insurance package which is provided to the shoe factory workers who stitch Nike’s shoes in Vietnam. It’s about time the players enjoyed the kind of insurance coverage which ordinary workers in America, not Vietnam, enjoy.

The message to the school is: you give me free shoes, but no solid insurance. Christ! — What Matters to you guys?

To solve The Main Thing: Don’t Strike – Spat

Matt Kish of Portland (Oregon) Biz Journal maintains an excellent searchable data base of most school apparel contracts here.]  

Copyright 2016 William Wilson

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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