You are University of Michigan running back Drake Johnson. It's April 13, 2016, and you're working out at a school facility. You've suffered two torn knee ligaments in preceding years, and today, you are run over by a forklift. A forklift.
Normally, the federal Occupational Safety and Health Administration (OSHA) would swarm like a bunch of Midwestern starlings following this sort of workplace accident; after all, five of the state of Michigan's 31 workplace fatalities in 2015 were forklift-related. Only this—ahem—is amateur college sports, which means OSHA doesn't have jurisdiction. Nor do workers' compensation laws require the school to pay your medical bills.
Oh, and since the National Labor Relations Board last year declined to rule on a case involving the unionization of Northwestern University football players, you don't have a union rep to look out for your interests, either.
In short, you have no power, and fewer protections than someone serving popcorn in the stands at Michigan Stadium. You are wholly at the mercy of Michigan's whims. Maybe the school will do right by you. Maybe it won't.
According to Michigan, Johnson is healed and healthy. Still, such is life for a revenue-sport athlete in a Power Five conference: your blood, sweat, and labor helps generate billions in annual television revenue, and hundreds of millions more in shoe and apparel deals, like the recent 11-to-15-year deal between Nike and Michigan that could be worth as much as $173.8 million. Yet only a small portion of that income reaches you, because you are not considered a school employee. Your work is not work, your rights are not valid. Your only real recourse is to wait on a series of complicated, protracted antitrust lawsuits that have been filed against the National Collegiate Athletic Association.
Or is it?
In the ongoing fight for college athletes' rights, there's a powerful weapon hiding in plain sight—a tool that athletes could start using right now to improve their lot, and force meaningful change. It's something that requires neither lawyers nor money, highlights the hypocrisies of the NCAA system, is far less risky than a playing strike, and turns the overwhelming economic power of schools against them in a nifty bit of protest jujitsu.
If players like Johnson want to shake up the status quo, all they need to do is start spatting.
What's spatting? Well, it's kind of like when marching bands whiten their shoes and ankles. Or when Nike endorser Michael Jordan used an American flag to cover over the Reebok logo on his Team USA uniform at the 1992 Barcelona Games medal ceremony. Or when Georgetown University athletes reportedly protested labor conditions at Nike's overseas factories last year.
For a formal definition, let's consult Nike's 2015 contract with the University of Texas, which reads:
"... 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."
And there you have it. Taping, painting, or otherwise obscuring the corporate logos on your college sports uniform—that's spatting. A simple, highly visible form of protest that's guaranteed to get the immediate, urgent attention of any major athletic department. The media, too. Because spatting will hit the college sports industry where it hurts most: right in the pocketbook.
Let's go back to that Nike-Texas contract. It also states that:
"... 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."
Read that again. We're taking $20,000 per shoe. If only five Texas players spat a total of ten shoes, the school could lose $100,000 of its annual compensation from Nike. But wait, there's more! According to the same contract, Nike has the right to a $30,000 clawback for each subsequent occurrence, which means that if five players spat for two games, the shoe company could dock Texas a cool $250,000.
You can see where this is going. Players cover logos. Shoe companies get upset, because they're not getting the human billboard advertising they paid for. Coaches and athletic administrators freak out, because those payments help cover their plus-size salaries and comfy perks. Meanwhile, reporters want to know what's behind the biggest college sports story of the year: How come you're masking that Swoosh or that Under Armour logo?
Honestly, is there a better visual metaphor for protesting the ongoing economic exploitation of big-time campus athletes?
Indeed, the beauty of spatting is that it would lay bare the NCAA's biggest lies: that athletes such as Johnson are simply students who happen to be good at sports, and that major college football and basketball are just noncommercial extracurricular activities, like the campus chess club.
In 1978, a NCAA member school questioned whether the wearing of a sports uniform bearing a manufacturer's logo counted as the promotion of a commercial product—something that would cut against the association's self-professed values. The association proclaimed that "as long as the logo on the [equipment or apparel] was the same logo generally available on that product available to the public, it would not be considered promotion of a commercial product."
Now, this might be true if and when a school is buying its uniforms off the rack, but it's a huge whopper for any athletic department, such as Texas, that is being paid to outfit its athletes. Nevertheless, current NCAA bylaws still have the audacity to claim that athletes "should be protected from exploitation by professional and commercial enterprises [and] may not benefit from the use of his or her name, likeness or image used to promote or endorse a commercial product or entity."
Protected from exploitation? Not considered promotion? Sure. Also, down is up. Read those pesky university-shoe company contracts again, and the legal language tells a different story. For example, Nike's Texas deal states:
1) The placement of its logo or marks is "the essence of the agreement" and "a bargained for material benefit";
2) Such "continued degree of manufacturer logo prominence on competition product is of the essence [the] agreement";
3) Texas "acknowledges that a material inducement to Nike's entrance into this Agreement is to provide broad and prominent exposure for the Nike brand and particular product, models and styles."
Similarly, Under Armour's new 15-year, $280 million contract with the University of California, Los Angeles states that "UCLA will require all Coaches, Staff and Teams to exclusively wear and use [UA] products whenever the Teams practice, perform or play in UCLA's intercollegiate athletic program, participate in Team-related activities (including, without limitation, travel to and from competitions, and participation in media and public relations opportunities, charity events, and photograph/video shoots) or conduct or participate in exhibitions, on-campus summer camps or clinics on behalf of UCLA."
If the above doesn't describe promotion—required promotion, no less—I don't know what does. It's right there in writing. College athletes could and should respond in kind. Before spatting, each participating athlete should send a signed Spat Notice letter to their athletic director (and local media), stating that:
● The school's shoe/apparel contract makes plain that the player is required to promote by wearing and displaying a logo;
● NCAA bylaws make plain that amateurism forbids players from commercial promotion;
● Player-school contracts do not require athletes to wear and display logos;
● As such, the undersigned athletes intend to spat their shoes and uniforms with logos for upcoming televised games, until and unless the school meets their demands.
How would schools react? In all likelihood, favorably. After all, they would be boxed in: force athletes not to spat, and they would be essentially admitting those athletes are employees with contractual commercial obligations; allow athletes to spat, and they would lose a whole lot of money. Plus, an ongoing spat protest in major college football or men's basketball—at one school or a dozen—could trigger a media frenzy of unflattering coverage highlighting the hypocritical absurdity of NCAA amateurism. A coach could suspend or cut spatters for "creating a distraction"—only that would create a much bigger one
As such, my guess is that athletes wouldn't even need to spat. They would only need to send a threatening letter to gain bargaining leverage. A backlash is always possible, but this would be far less risky than an all-out strike that could potentially anger fans who at the end of the day simply want to watch games. A spat campaign, on the other hand, could produce sympathy. Really, why shouldn't those guys get a cut of the shoe money? They're the ones wearing the shoes!
What should athletes demand? Perhaps they actually want to be protected from the upside-down commercial exploitation described by NCAA bylaws, and have corporate logos removed from their uniforms. More likely, they want to protected from the NCAA's commercial exploitation, and granted workplace rights, protections, and a fairer share of the money their labor generates.
Personally, I think athletes should focus on a pressing, immediate goal: obtaining top-tier, longer-tail health and disability coverage. Currently, schools typically provide coverage that is either secondary to an athlete's personal health insurance, or a primary policy that only extends one year past the date of injury. (In fact, most schools better insure their buildings and intellectual property than their human player-assets). That's simply not good enough. Asking for a Player Insurance Fund—at the precise amount that could be clawed back during a spatting campaign—would be a step in the right direction, and help athletes such as Johnson sleep more soundly at night. It would also be awfully hard to argue against, even by people who believe Dante should have reserved a tenth circle for college athletes with money in their pockets. Who's against health care?
Of course, it ultimately would be up to players to decide what matters most to them. The important thing is that they have a terrific negotiating tool at their disposal, one with the power of a forklift. It's hanging in every college locker room, tucked away in a thousand and one campus closets. They just have to use it. Athletes of the NCAA, unite! And spat. You have nothing to lose but your logo-spackled chains.
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