When the World Turns Upside Down, We Need to Be Willing to Change Our Minds (warning: misleading teaser)
While not exactly click-bait, this column's headline is deliberately somewhat deceptive. (Hence, the parenthetical disclaimer.) After all, given the political upheavals that we are all now witnessing in the post-rule-of-law United States, such a headline might well have been teasing a column in which I call on anti-Trumpists to be more aggressive in resisting no-longer-crypto-fascism.
Indeed, in a column this past July, I noted that the Supreme Court's immunity decision had given the outgoing Biden Administration the opportunity to prevent Trump from ever taking power (notwithstanding the election's outcome) by any means necessary. In "The Court Has Invited the Democrats to Do Their Worst," however, I noted that even if "the alternative-reality Democratic Party that suddenly learns to play hardball finally comes into existence," they would be unlikely to resort to political violence to prevent the end of constitutional democracy. Such extremism is simply not in the Democrats' DNA, and certainly not in Joe Biden's.
But again, this is all a big misdirection, because my topic here is not Trumpian dystopia but college football, which has become its own kind of hellscape. Longtime readers of Dorf on Law are likely to recall that I write one or two columns every year at the end of the season, usually offering a guilt-ridden confession that I continue to be fascinated by that brutal and corrupt sport, followed by some observations about the new ways in which the brutality and corruption are playing out. Last Monday, for example, I wrote a column ridiculing the motivated (lack of) reasoning that we saw in college football commentary in the 2024/5 season.
That was fun, but my arguments in today's column are much more thoroughgoing. The world of college football has truly turned upside down -- not as completely as the US political system has, but still at a fundamental level -- and the new reality requires honest observers to be willing to reassess what we believe. I often return to a famous quip -- "When the facts change, I change my mind - what do you do, sir?" words that were probably not first spoken by my favorite economist, John Maynard Keynes -- so it is important to be aware of changes in the world that might call for reasonable people to change their minds.
And in college football, that time has definitely arrived. I will not take the time to chase down links to my old columns, but especially circa 2011-13 I wrote a series of columns in which I argued that the call to pay players cash salaries was a bad idea because the players were already being "paid" with much more valuable compensation (college educations, plus all kinds of perks), and in any case the money that was sloshing around college football would ultimately allow universities to support their educational missions.
A dozen or so years ago, that argument made sense. Although most people at that time had long been making nonsensical claims in order to further corrupt the college sports environment, the game was at a crossroads, and a series of good decisions could have saved the system from utter degradation. Those available options included player-protection policies such as guaranteed long-term health and disability insurance, irrevocable scholarships (rather than giving coaches the power to yank a scholarship at will), and making sure that the net profits that the top teams were pulling in would in fact be handed over to the universities' general funds.
Again, when the facts change, I change my mind. And boy oh boy, have the facts changed. Even before the stealth payment system called NIL (name, image, and likeness rights) had completely swamped what remained of the amateur model -- which became unmistakably clear only a year ago, and which changed everything in a way that can never be undone -- the system was irreversibly changed by adding more games to the schedule. As I noted in last week's column, whereas as recently as twenty years ago only a few teams would even play thirteen total games, now the finalists might play as many as seventeen.
I also pointed out that even by midseason the sports headlines were full of stories about players suffering season- and career-ending injuries. And the stories were not presented as a crisis or a tragedy but in the same way that the business pages cover the stock market -- just another day in the biz. Moreover, the dangers of longer seasons are not linear. That is, the likelihood of serious injuries happening in the fifteenth game of the year are much higher than in the fifth, because the players are often playing through pain as the season wears them down.
Moreover, those late-season games are typically the toughest of the season, played against the largest and strongest opponents. Weirdly, the new reality is that the season has become so long that some "season-ending" injuries are now nominally healed before the season ends, because there are so many more games to play. Not that those returning players are at full strength, of course, because their "I'm all in for the team" toughness and bravado pushes them to try to do too much too soon.
Will the value to the team of these now-paid players matter? (Aside: The universities are in the final stages of setting up a new system with explicit cash compensation, although NIL alone was more than enough to change everything.) After all, even the cold pursuit of profit might make an organization think twice about putting an expensive cog into a situation that will break it and thus require it to be replaced at great expense. Players used to be disposable (subject to the difference in quality between the injured starters and the replacements), but maybe now the green-eyeshades mindset could make teams think twice.
Perhaps, but probably not. Just yesterday, ESPN's website ran a story saying that Nebraska's second-year head coach Matt Rhule had announced that he would no longer hold the traditional "spring game," a full-contact scrimmage that is popular with fans and that is "a major revenue producer." Was it because he is worried about injuries? Not at all. According to ESPN:
Rhule said exposing his players to other schools is more of a concern to him than risking injuries in a spring game. Wide receiver Demitrius Bell and cornerback Blye Hill were hurt in last year's spring game and missed the season. Rhule said live tackling will continue in scrimmages during spring practice.
"Guys are being compensated now, and you're putting money behind some people, a whole other set of parameters," Rhule said. "Yet, at the same time, you have to get good. Honestly, to me, it's about protecting the roster and protecting through that portal period."
Ignoring the jargon toward the end of that quotation, the coach's bottom line is that the spring game allows other schools to see who his best players are and then to poach them before the season begins. Two season-ending injuries in a meaningless game were simply the price one pays "to get good." Do we care about these young men (who are in many cases still too young to buy alcohol legally) and their wellbeing? Heck no: "Guys are being compensated now." The move toward increasing compensation and making it in-cash rather than in-kind is merely an excuse to engage in conscience-free exploitation of the men who might never walk normally again and who often leave even the college game with severe brain trauma.
In a way, this change in the landscape might support rather than undermine my long-held views about how college sports should be run. The players are being more physically beaten down than ever. The money that the football teams generate never seems to make it out of the athletics departments, which means that the rest of the university is not benefiting from the billions of dollars that ESPN and other networks are paying. And with the creation of coast-to-coast conferences (Stanford and Berkeley are now in the Atlantic Coast Conference!), it has become ever more difficult for even the most academically committed players to receive anything remotely resembling a standard college education.
Given all of that, why am I changing my mind -- and how? Because it is far too late even to slow down this runaway train, much less to reverse course and return to the comparatively sane (but only barely) world that existed as little as five or ten years ago. We are far beyond the point where first-best, second-best, or even tenth-best solutions are achievable. As I noted last week, the college football insiders' response to the most recent expansion of the playoffs was to declare success but then to say that it would be even better to add still more teams and games to the postseason tournament.
I should add that there is every possibility that this will all fall apart in time. I cannot find the video, which means that I will not be able to give credit where it is due, but a smart commentator pointed out a few months ago that college football is about to become something completely different: explicitly a league of "not the best players in the country." The best players are playing in the NFL, the big leagues, so what does that make the NCAA? I grew up in Toledo, Ohio, and although I have a warm spot in my heart for my AAA-level Mud Hens baseball team, they are not The Show.
College football, that same commentator pointed out, has a hold on people's emotions in large part because of century-long local rivalries that are lately being abandoned because of the exigencies of realignment. When, for example, Oregon and Oregon State no longer play each other, will the fans thrill to the sight of Rutgers showing up in Eugene for a B1G conference game? And as I noted in my seasonal post mortem column last year, we are already in a world where teams might have good reasons to tank games that no longer matter (as, for example, the Kansas City Chiefs did in this NFL season's final week, when they allowed themselves to lose 38-0 to a lesser team in order to protect their starters).
Even so, fans' intensity regarding college football is uniquely strong, and the factors that might ultimately undermine those emotions will take years to play out. In any event, given that I am acknowledging that circumstances have changed and that we cannot go back to a system that I would prefer, what should be done? Give up and just let the players be exploited even more ruthlessly -- with many of them being very poorly compensated for their pain?
No, of course not. If college football is becoming in every other way a pro sport, then it should at the bare minimum have what every other professional sport has: a union that negotiates a collective bargaining agreement. Admittedly, the NFL's union has a spotty record in many ways, but it is much, much better than nothing. It has stopped the league's owners from adding even more games to the regular season and playoffs. It has put pressure on the league regarding the injuries that are the direct result of cheaping out on playing surfaces. It has negotiated disability compensation for generations of former players. Without the NFLPA, the players would have even shorter careers and face even more painful retirements.
In the current political environment, where the Republican Party has been opposed to labor protections for decades, and the co-President of the United States is even more virulently anti-union than the Republican Party ever was, perhaps calling for union protection for college football players is to tilt at windmills. Moreover, university leaders are opposed to admitting that their players are employees, and the strongest football teams are often in the most anti-union states (especially the Deep South).
In other words, the new "best strategy" is anything but an easy sell. Even so, having clung for years to the hope that the old system could somehow be salvaged, now is the right time for me to change my mind in light of a new and undeniable reality. College football is irredeemably ruined, and the best that can be done is to give the players the ability to unite and collectively bargain to protect themselves. Even that might never happen, but not to try would be unacceptable.