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Transcript of comments from U.S. Senators Richard Burr, Lamar Alexander

The following is a transcript of comments given by Sen. Lamar Alexander, R-Tenn., and Sen. Richard Burr, R-N.C., in the U.S. Senate on April 10, 2014.

Lamar Alexander: Mr. President, the Senator from North Carolina and I were both involved in intercollegiate athletics. He was a scholarship athlete at Wake Forest University and I was a nonscholarship track person at Vanderbilt University several years before that.

We are here today to make a few comments on the recent ruling by a regional director of the National Labor Relations Board that defines student athletes as employees of the university. It affects only private universities for now—not the University of Tennessee. But it would affect Wake Forest, where the Senator from North Carolina was an outstanding football player, and it would affect Vanderbilt, where I attended.

I guess our message to the NCAA and intercollegiate athletes is: We hope they will understand the opinion of one regional director of the National Labor Relations Board is not the opinion of the entire Federal Government. That is the message I would like to deliver.

I would refer back—and then I will go to the Senator from North Carolina—to 25 years ago, when I was the president of the University of Tennessee, and I was asked to serve on the Knight Commission on Intercollegiate Athletics. It was headed by the president of North Carolina, Bill Friday, and the head of Notre Dame, Father Hesburgh—a pretty distinguished group of individuals from around the country—to take a look at intercollegiate athletics.

The major conclusion they came to was that presidents need to assert more institutional control over athletics. But here is something that this group of university presidents and others emphasized. They said:

We reject the argument that the only realistic solution to the problem [of intercollegiate athletics]

And there have always been some—

is to drop the student-athlete concept, put athletes on the payroll, and reduce or even eliminate their responsibilities as students.

Such a scheme has nothing to do with education, the purpose for which colleges and universities exist. Scholarship athletes are already paid in the most meaningful way possible: with a free education. The idea of intercollegiate athletics is that the teams represent their institutions as true members of the student body, not as hired hands. Surely American higher education has the ability to devise a better solution to the problems of intercollegiate athletics than making professionals out of the players, which is no solution at all but rather an unacceptable surrender to despair.

This was the Knight Commission 25 years ago.

I would ask the Senator from North Carolina, does he not think that while there may be some issues with intercollegiate athletics—and we could talk about what some of those are—that unionization of intercollegiate athletics is not the solution to the problem?

Richard Burr:  Let me say to my good friend, the Senator from Tennessee—who not only was a walk-on track member at Vanderbilt, but was the president of the University of Tennessee, the Governor of Tennessee, the Secretary of Education, and now is a Senator—his credentials allow him to say whatever he wants to on this issue with a degree of knowledge.

It was Teddy Roosevelt who identified the challenge of college football, and through his attempt to get Harvard and Yale and a couple of other universities to address the risk, the NCAA was created.

The amazing thing to Senator Alexander and myself is that we have this governing body today that by all practical observations has done a great job of regulating college sports. It is the reason we have fabulous playoffs. It is the reason we have integrity in the scholarship system. But, more importantly, it is the reason we have top-quality athletes who go into these schools, where less than 1 percent become pros. Ninety-nine percent of them are reliant on a great education for a fabulous outcome in life. To do anything that changes the balance of what they have been able to create is ludicrous and I think what troubles me, and I think it troubles Senator Alexander.

These are not some misguided college football players. This is the United Steelworkers. Let me say that again because I do not think people understand it. This is the United Steelworkers who have put up the money so that these players from Northwestern would go to the NLRB and say: We want to unionize at Northwestern University. Well, on the face of it, it creates a great inequity between public and private schools, where we have a governing body that tries to make this process as equitable as it can.

But let me make this point: If you want to drive the rest of the schools out of major sports, then do this. Only 10 percent of our Nation’s athletic programs make money. That means 90 percent of them lose in the athletic department. But for the quality of life of all students, not just athletes, they continue and their alumni continue to subsidize it.

I agree with my good friend from Tennessee. This would be a huge mistake, and it is time for those players at Northwestern to think about more than those individuals who have fronted them the money to bring this case.

Lamar Alexander:  I thank the Senator from North Carolina.

The question should be obvious: What does a student at Wake Forest or Vanderbilt or—and we are using the private universities, again, because those are the only ones affected by this decision for now—but if you are at Vanderbilt University, according to the vice chancellor, the total scholarship could be nearly $60,000. That is the value each year of your athletic scholarship. Times four—so you are up to one-quarter of a million dollars.

The College Board says—roughly estimates—that a college degree adds $1 million to your earnings during a lifetime.

So the idea that student athletes do not get anything in return for their playing a sport is financially wrong. And just speaking as one individual who had the privilege to participate for 2 years as a student athlete without getting anything—I had scholarships, but they were not athletic scholarships—the discipline, the memories, the competition, the chance to be in the Southeastern Conference Tournament—that is very important to me. It was then, just as athletics always is. It is a rare privilege to participate in intercollegiate athletics.

The presidents have looked at the problems of intercollegiate athletics. And there are some. But people forget—and I know the Senator from North Carolina is aware of this. But let’s say you are at Vanderbilt and you have a $58,000 scholarship—tuition, room and board but your total costs are over $60,000 and let’s say you come from a poor family that has no money and you are put in the embarrassing position of not having walking-around money, money to go out and get a hamburger, or whatever you want to do.

Forty percent of student athletes in America also have a Pell grant similar to 40 percent of all students in America have a Pell grant, and the Pell grant can be, on average, $3,600. So that is $300 a month that could be added.

Now, perhaps there are other issues that ought to be addressed. But I wonder if the Senator from North Carolina would speak more about one thing he talked about. I imagine Florida State, the University of Tennessee, Stanford, maybe Wake Forest—they will all be fine with a more expensive athletic program. But what is going to happen to the smaller schools? What is going to happen to the minor sports? What is going to happen to the title IX women’s sports if for some reason a union forces universities to have a much more expensive athletic program for a few sports?

Richard Burr:  Well, let me say to my good friend from Tennessee, I will quote the words of Wake Forest President Nathan Hatch, a former provost at Notre Dame, in an editorial he wrote in the Wall Street Journal just this week.

He says:

To call student-athletes employees is an affront to those players who are taking full advantage of the opportunity to get an education. Do we really want to signal to society and high-school students that making money is the reason to play a sport in college, as opposed to getting an education that will provide a lifetime benefit?

President Patrick Harker, president of the University of Delaware, in the same article said:

Turning student athletes into salaried employees would endanger the existence of varsity sports on many college campuses. Only about 10 percent of Division I college sports programs turn a profit, and most of them, like our $28 million athletic program at the University of Delaware, lose money. Changing scholarship dollars into salary would almost certainly increase the amount schools have to spend on sports, since earnings are taxed and scholarships are not. In order just to match the value of a scholarship, the university would have to spend more.

At Wake Forest, let me say, today a scholarship is worth $45,600 in tuition in fees, $15,152 in room and board, $1,100 in books. I will say to my good friend from Tennessee, I am not sure if there is still $15 of laundry money a month that exists under a scholarship. That is what it was when I was there. I daresay I hope it is more than that today because I do not think you can do laundry for $15 a month.

Lamar Alexander:  I wonder if I can ask the Senator to reflect a little bit on some of the practical consequences of a student athlete suddenly finding himself thought of as an employee of the university. I wonder, for example, would the employee of the university, the quarterback or whatever position he plays, have to pay taxes on his income? I would think so.

I was thinking about the recent changes in Federal labor law that allow for micro-unions. Almost any little group can petition the National Labor Relations Board, under the Obama administration’s views, to become a union. I wonder if quarterbacks would become a micro-union. They would say: We are more important. Look at the NFL. They get paid a lot more. We want a bigger scholarship than others.

I wondered about five-star recruits. Let’s say there is a terrific defensive back—as I am sure Senator Burr was when he was in high school. He had five stars from all the recruiting services. Would the private schools who are unionized go out and compete to see who could pay the highest compensation to the five-star recruits, a lot less to the walk-on, maybe less for a three-star. What are the practical consequences of a student athlete suddenly finding himself defined as an employee of the university under the National Labor Relations Act?

Richard Burr:  Let me say to my good friend, as one who remembers August practices in the South—hottest time of the year, three practices a day—the first thing I would bargain out for all players is that I would have to get my ankles taped at 4:30 in the morning, that I would have to go all day and most of the night, and that I could not take that tape off until 8:30 after three practices.

I would negotiate away the smell of dead grass in August, a memory every college football player, as a matter of fact every football player, has of that dead grass in summer practice in hot weather.

I plead with those who play today: Do you truly believe you can form a team if in fact you have individuals who negotiate individual things for themselves? If quarterbacks negotiate they cannot be hit, how good is the club? But where is the team? If individuals find that it is advantageous to them because they are stars and they can negotiate it, where have we lost the sense of team sports?

The Senator from Tennessee mentioned this to begin with: College sports is a lot about the experience. It builds character. It builds integrity. It builds drive. It builds resilience. It is not the only thing in life that does it, but to me, for many individuals, for many young men and women, this is the most effective way for them to become leaders. I might say it is very much the style of our training in the military. As we raise those young officers, they go through a very regimented training.

Imagine what it would be like if we allowed the military to collectively bargain. Let me tell you, none of us would feel safe at night because we don’t know exactly what they have gone through. Today we feel safe because we know they have all gone through the same thing.

Lamar Alexander:  Mr. President, I think our time is coming toward a close, but we have about 5 minutes left. Then we will be looking forward to the comments of the Senator from Iowa. We thank him for his courtesy in allowing us to go ahead.

I guess the message—I particularly enjoyed hearing the Senator from North Carolina. The message today is directed at two groups. One is to the NCAA, which is to say, do not think that the attitude of one Regional Director of the National Labor Relations Board reflects the view of the U.S. Government. It does not. The other is to the student athletes. Think about the value of the opportunity you have.

Here are two former student athletes of varying talents who benefited enormously from that. There are many others who would say the same. The university does not owe us anything. We owe the university—at least that is the way I feel about it—for the privilege of competing, for the privilege of attending. If I had a scholarship, that would have been even better—just the privilege of participating.

To the NCAA, the members of the NCAA have talked about issues such as should we provide more expense money for athletes. I mentioned earlier that 40 percent of them have Pell grants which can go up to $5,600 a year in addition to their $55,000 or $60,000 of football scholarships. So think about that. That was considered by the NCAA and voted down because the small schools said: It will hurt us. Women’s programs said: We will have to drop women’s programs.

So this is more complicated than it would seem at first. What about health care? Of course, a student athlete can be covered by his parents’ health care insurance. Under the Affordable Care Act, I am sure many on the other side would be quick to say, they would always be able to be insured for any sort of preexisting condition, but these are issues that can be properly looked at by the NCAA.

Unionization, in my opinion, would destroy intercollegiate athletics as we know it. I think we should look back to the opinion of the Knight Commission, headed by Bill Friday of North Carolina and Ted Hesburgh of Notre Dame, and reaffirm that the student athlete is not a professional, not a hired hand. He or she is a student. One percent of the athletes in this country—there may be problems to solve, but the universities and the NCAA can address those problems. Unionization is not the way to do it.

Richard Burr:  I just wanted to address one last thing; that is, the claim that this case was all about health care. The Senator from Tennessee has pointed out as well the options that we have today. But let me speak from a firsthand experience: a college athlete, four operations—two knees, an elbow, a finger. Probably the only record I hold at Wake Forest is the total number of inches of scars on my body. Because of modern medicine, that record will not be broken because they do not do surgery that way anymore.

But I think it is best summed up by our current Secretary of Education, Arne Duncan, when he said this:

When sports are done right, when priorities are in order, there is no better place to teach invaluable life lessons than on a playing field or court. . . . Discipline, selflessness, resilience, passion, courage, those are all on display in the NCAA.

Why would we do anything to risk that? Not only do I believe this is risky, I think just a consideration of it is enough to make us—or should make us reject this quickly, not embrace it.

I thank my colleague from Tennessee.

Lamar Alexander:  I thank my colleague from North Carolina.

I thank the Senator from Iowa for his courtesy in allowing us to go ahead.

Some 50 years ago, I had the opportunity to compete in track and field for Vanderbilt University. Unlike my colleague from North Carolina, who as a fine defensive back at Wake Forest University, there was no athletic scholarship available for me. But I was fortunate enough to be a member of a record setting team.

Twenty-five years ago, while I was president of the University of Tennessee, I was asked to serve on the Knight Commission on Intercollegiate Athletics. The Knight Commission was created in October 1989 in response to a series of scandals in college sports. After 18 months of careful study, our 22-member commission issued a report called “Keeping the Faith with the Student-Athlete: A New Model for Intercollegiate Athletics.”

Our central recommendation was that college presidents needed to exercise stronger control of their athletics programs to ensure their academic and financial integrity. And our guiding principle in making that recommendation was that athletes are students first, not professionals. We wrote:

We reject the argument that the only realistic solution to the problem is to drop the student-athlete concept, put athletes on the payroll, and reduce or even eliminate their responsibilities as students.

Such a scheme has nothing to do with education, the purpose for which colleges and universities exist. Scholarship athletes are already paid in the most meaningful way possible: with a free education. The idea of intercollegiate athletics is that the teams represent their institutions as true members of the student body, not as hired hands. Surely American higher education has the ability to devise a better solution to the problems of intercollegiate athletics than making professionals out of the players, which is no solution at all but rather an unacceptable surrender to despair.

The Knight Commission’s perspective on student athletes could not be more different to the perspective in the recent decision, issued by a regional director of the National Labor Relations Board in Chicago, to treat athletes as employees and permit them to form a union.

Student athletes are found throughout all levels and at all types of colleges—small through large, but those that receive athletic scholarships are only at division I and II schools. Division III schools are not allowed to award athletic scholarships.

For the purposes of the NLRB decision, we are talking about an even smaller subset of athletes—scholarship athletes at private institutions like Notre Dame, Vanderbilt, and Stanford. For example, as a non-scholarship athlete at Vanderbilt, I would not have been able to unionize. Senator Burr, on the other hand was given a scholarship to play defensive back at Wake Forest. He would be allowed to unionize.

In 2011, there were roughly 25 million undergraduate students; 9 million Pell recipients, which is approximately 36 percent of undergraduate students. In addition, there were 177,000 scholarship athletes enrolled in bachelor programs at public and private institutions. This is approximately 1.7 percent of all students in bachelor’s programs. Of those, 71,000 received Pell Grants, approximately 40 percent of scholarship athletes. The number of scholarship athletes at private institutions enrolled in a bachelor’s program was 104,000, approximately 4.2 percent of private students in bachelor’s programs. Of those, 43,700 received Pell Grants, approximately 42 percent of private scholarship athletes.

The total number of division I and II schools is 662 of which 283 are private institutions. In division I the total is 350 with 119 of them being private, while the division II total is 312 with 164 private.

Athletic scholarships are limited to only tuition and fees, room and board, and required course-related books. At Vanderbilt the total scholarship could be as much as $58,520 which is a combination of $42,768 for tuition, $14,382 for room and board, and $1,370 for books. At Stanford the total scholarship could be as much as $59,240 which is a combination of $44,184 for tuition, $13,631 for room and board, and $1,425 for books.

Contrast that with the University of Tennessee where the scholarship total could be up to $21,900 consisting of $11,194 for in-state tuition, $9,170 for room and board, and $1,536 for books.

Scholarship athletes may also combine other sources of financial aid, namely Federal or State need-based aid or earned entitlements, in order to cover the full cost of attendance. These include, Pell Grants, Supplemental Education Opportunity Grants, work-study, State grants based on need using Federal need calculations such as Tennessee’s HOPE Scholarship and veterans programs such GI Bill or post 9/11 GI Bill.

Athletic scholarships are awarded in most cases by the athletic department which encourages an athlete to complete the federal application. If an athlete is determined to have a need, then the financial aid office awards the need-based aid, Federal, State, or both. A student athlete is restricted to the institutional cost of attendance when combining other aid with their scholarship, unless they are using their Pell Grant or a veterans benefit. Thus a student athlete with need could receive a full scholarship covering all costs and receive additional funds.

Only 1 percent of student athletes will ever play professional sports. For the remainder, their college degree is the primary benefit of participating in college sports. According to the College Board, the value of a college degree is $1 million over an individual’s lifetime. As a former student athlete, who wasn’t on scholarship, I can speak from experience that the value of college athletics goes beyond the money. It can enrich every aspect of our education, teaching lessons and developing habits that will pay dividends no matter what a student pursues in life.

Unfortunately, the problems the Northwestern football players are concerned with are not unique to Northwestern and they are not new. These problems include: the NCAA does not currently allow a full-ride athletic scholarship to cover the actual full cost of attendance; Other expenses include: transportation costs; health fees; student activity and recreation fees and personal expenses allowable under Federal financial aid rules.

For example, a full-ride scholarship at Vanderbilt University is worth $58,520 but the full cost of attendance is calculated by the school to be $62,320. The difference must be made up by the student.

For some student athletes, the lingering effects and potential disabilities will be felt for many years after their playing days are over. Some students are asking for long term medical coverage to help them cover costs of treating these injuries. Schools could provide for some form of additional medical coverage.

While playing sports has certain inherent risks, we do know more now than ever before about how injuries can be avoided. Better protections from injury—football concerns with concussions. Schools can take, and some are taking, steps to improve the safety of their student athletes.

Some students are asking for help to finish their education even when athletic eligibility has run out.

There is money available to address these concerns and take care of our student athletes without unions.

The NCAA and the member universities do need to reform their rules and guidance; and they will.

Earlier this week we spoke to David Williams, Vanderbilt University’s athletic director, who had this to say:

The NCAA and its member universities have the authority and the responsibility to correct the flaws that exist in the system today, many of which are mentioned by the student athletes at Northwestern University. The question is do we have the will to do so. I believe we do and that we will.

Mark Emmert the President of the NCAA, quoted in a recent Meet the Press interview said:

We have twice now had the board of the N.C.A.A. pass an allowance to allow schools to provide a couple of thousand dollars in what we call “miscellaneous expense” allowances. . . . The board’s in favor of it. The membership, the more than a thousand colleges and universities that are out there, the 350 of them that are in division one had voted that down. We’re in the middle right now of reconsidering all that. I have every reason that that’s going to be in place sometime this coming year.

What would actually happen if college sports teams were unionized? Well, David Williams, Vanderbilt’s athletic director, said:

The decision by the NLRB regional board has the power to change the structure, dynamics and maybe the effectiveness of college athletics. It may ultimately end college athletics as we know it today.

I agree with this statement. And think those who support turning college athletes into employees and unionize them should consider the potential consequences. One potential consequence relates to taxes. This recent decision, in essence, may require the entire scholarship to be treated as compensation thus making the whole amount taxable.

Another consequence of potential collegiate unionization relates to labor. One of the most commonly thought of traits when a union represents a workforce is the right to strike. Section 13 of the National Labor Relations Act, NLRA, expressly provides the right of employees to strike, with some exceptions. If a unionized college baseball team doesn’t like the coaches’ decision to switch practice times, they could decide to walk off the field right before the first pitch is thrown, and call a strike.

The NLRA requires the union and employer to bargain over wages, hours, and other conditions of employment. If a football team joins a union, will the union negotiate different compensation amounts depending on the player’s position or contribution to the team? For example, a five star quarterback in high school could decide to attend Notre Dame, because the players’ union promises to negotiate a larger scholarship package for him, but the one star, offensive lineman may only get the bare minimum. This could lead to a team and its union making value judgments based on the on-field contributions of a player.

What about when a coach decides to change the offensive scheme from a pro-style offense to the wish-bone. A union wide receiver might have a grievance because this could effect the “condition of employment,” in that his role on the team could be diminished. Under the NLRA, a decision like that would have to be bargained for. A coach could not unilaterally change the playbook without approval of the union.

But let’s say that a wide receiver decides to go directly to the coach to discuss his grievance about switching offensive schemes. Under the act, that conversation will not be a one-on-one between the coach and the player. Instead, a union representative has the right to be present at that meeting. And instead of resolving the issue internally, the Federal government through the NLRB, or possibly the Federal courts could have the final say.

The current NLRB has struck down several employee conduct policies and handbooks, because they violate an employee’s section 7 right to “concerted activity” under the NLRA. Will the NLRB now turn its attention to and interfere with the player conduct policies that schools require of their players?

The NLRB issued a 2011 decision in Specialty Healthcare, that permitted unions to organize, multiple, small groups of employees within a single workplace, known as “micro-unions.” It is conceivable that every different position on the football team could decide to have their own bargaining unit. The quarterbacks in one unit, the lineman in another unit, and the linebackers in another, etc. The university would then have to separately bargain with multiple different unions, all with different demands.

Universities require its athletes to maintain a 2.0 grade point average, GPA, to keep an athletic scholarship. Would the NLRA consider a minimum grade point average as a condition of employment under the law that must be bargained for? Schools and players’ unions could bargain a lower GPA.

What if a coach benches the star point guard, who is a union member, on the basketball team, and replaced him with a non-scholarship, walk-on point guard? Could the team be accused of retaliating against a union player in violation of the NLRA? Under the NLRA it is unlawful to discharge, discipline or otherwise discriminate against an employee for engaging in protected concerted activities. If that star player could show that the benching came after he had been discussing a team related issue with his fellow teammates it would be considered retaliation.

The bottom line, is that importing the sometimes head-scratching rulings of the NLRB into a competitive, team atmosphere is recipe for disaster.

Do they now hire athletes and not worry if they are students? Mark Emmert, NCAA President, said:

To unionize them, you have to say, These are employees. If you’re going to do that, it completely changes the relationship. I don’t know why you’d want them to be students. If they’re employees and they’re playing basketball for you, don’t let calculus get in the way.

Yesterday, the Senate voted against cloture on the Paycheck Fairness Act. This is a bill that would amend the Equal Pay Act to make it easier to sue for pay discrimination based on gender by limiting an important employer defense.

Under the bill, the employer would have to prove any difference in pay would be job-related and consistent with a business necessity; If these student athletes are now considered “employees” under the eyes of a regional director in Chicago, they would theoretically be entitled to protection under statutes like the Equal Pay Act; And if the Paycheck Fairness Act were to become law, it is conceivable universities could be liable for any differences in compensation that they provide the football team, versus the women’s soccer team;

Then there is the effect on smaller schools. Big schools with big budgets may have the ability to negotiate with a union for better benefits for their student athletes. If a football union at Notre Dame negotiates for higher compensation that may set a standard the school must match for other athletes as well. I imagine that there is enough money coming into the Notre Dame or Stanford athletic departments to allow them to adjust to the realities of unionized college athletics.

But what about smaller schools? They will have to make cuts somewhere. If they preserve their football program, it will likely be at the cost of other sports.

Another consideration that must be taken into account are public universities versus private universities. Because the NLRB regional director’s decision only applies to private universities, it creates a different set of rules for private universities than for public universities.

The private schools with athlete unions may ultimately be forced to negotiate salaries or other benefits that violate NCAA rules; to continue competing, they would have to set up their own conference or association. The departure of schools from the NCAA to this new, union friendly association, would fracture the foundations of collegiate sports.

And what about possible title IX implications? As title IX was enforced related to college athletics, institutions made difficult choices to eliminate many athletic programs. Title IX is focused on improving equal access to education. If athletes are employees, then it is unclear how the requirements and protections of title IX will apply to them.

Due to the current limited nature of the ruling, if football players’ compensation are considered salaries and not scholarships, then would one of the possible effects be a reduction in the number of women’s scholarships that title IX requires the university to offer? Or would title IX require that any new benefits received by a football team under their collective bargaining be shared equitably with the women’s sports at the university?

With limited resources and title IX requiring both proportional opportunity for athletes and pay, the recent decision may result in further reductions of athletic programs and opportunities on college campuses.

The Knight Commission’s executive director, Amy Privette Perko, recently wrote in the New York Times that:

The commission supports many of the benefits being sought for college athletes by groups like the College Athletes Players Association, but unions are not needed to guarantee those benefits. Colleges can enact proposals long recommended by the commission for colleges to restore the educational role of athletics and improve athletes’ experiences.

I continue to believe that athletes are students first, not professionals. Some of the concerns raised by these college athletes are legitimate but unions are not the solution. They can and should be addressed by the schools and the NCAA.