Guest Post: QB Reminds Higher Ed of Regulatory Truth

William Devine
Guest Contributor
Managing Partner, William Devine Esquire
Adjunct Professor of Management, Menlo College


Last month Josh Rosen, a junior at UCLA who plays quarterback, was quoted by a national sports news website saying, “Football and school don’t go together.” Within hours UCLA’s coach and Stanford’s coach each tried to paint the young man as unenlightened.

Research shows that Rosen is more correct than the coaches admit, but that’s only part of the story. What’s news is that a twenty-year-old—not a university trustee or president, not a U. S. District Court judge or an antitrust lawyer—put his finger on a regulatory reality that higher education may not be able to ignore for much longer.

Poor education

UCLA’s coach reacted to Rosen by claiming to be “…really proud of the fact that at UCLA, we have a really tremendous balance of academic and athletics.” Yet according to graduation rate data reported to the Department of Education for 2015-16, UCLA’s overall student body graduates at a rate of 91%, whereas the football team graduates at a rate of 70%. The rate drops to 64% for black football players.

Meanwhile, Stanford’s coach claimed that Rosen’s statement was “…an unfortunate comment that does not really apply to most places.” Yet a 2016 report by the College Sport Research Institute at the University of South Carolina shows that football players at the nation’s 65 biggest football universities—those in the Atlantic Coast, Big 12, Big Ten, PAC-12 and Southeastern Conferences—graduate at a rate that is 18.4% lower than the rate for the rest of the student body. The disparity jumps to 25.2% for black football players.

So despite the coaches’ polished assurances, research shows in stark terms that there is conflict, not balance, between university education and university football. It also shows that the conflict exists not just in a few places, but virtually throughout the industry.

Rosen, an Economics major, adds dimension to this research by noting that football’s erosion of education is more subtle than simple undermining of graduation rates. “[F]ootball really dents my ability to take some classes that I need. There are a bunch of classes that are only offered one time. There was a class this spring I had to take, but there was a conflict with spring football…” Interviewer: “So football wins out?” Rosen: “Well, you can say that.”

Poor model

Why can’t these coaches see the conflict between football and school? They may be blinded by the personal benefit in preserving the industry’s status quo. According to Stanford’s 2014 IRS filing, their football coach earned more than $4 million that year. The following year, UCLA’s football coach, at $3.5 million, earned more than anyone else on the State’s payroll. He narrowly beat out the State’s second highest paid employee: UCLA’s basketball coach.

The coaches also may be missing the big picture: football and school conflict not just for football players, but for virtually everyone in the student body. After all, university football’s billion-dollar-TV-contract-plus-free-labor revenue model, broadcast in prime time to students desperate for economic competence amid economic uncertainty, offers an unmistakable lesson. Talk about honesty and values is fine in those lectures on Dr. Faustus, but when billions of dollars are on the table, employ whatever Mephistophelean mix of semi-truth and manipulation is necessary to pocket the money.

In a world where decisions about critical economic, environmental and political issues will press these students from the moment they graduate, this is dysfunctional conduct for higher education to model. Especially given that most football universities were formed pursuant to documents that say nothing about football.

Perfect compliance

Most football universities were formed pursuant to documents that read much like the legislative act that formed the University of California in 1868:

The University shall have for its design, to provide instruction and thorough and complete education in all departments of science, literature, art, industrial and profession pursuits, and general education, and also special courses of instruction in preparation for the professions of Agriculture, the Mechanic Arts, Mining, Military Science, Civil Engineering, Law, Medicine and Commerce…

Football is obviously not included in this scope of university activities, yet trustees at institutions nationwide have plenty of regulatory cover. Thanks in large part to comments made in a House Ways and Means Committee report in 1950, “an athletic program is considered to be an integral part of the educational process of a university.”

Is football’s educational value sufficient to warrant its inclusion in a program of instruction with physics, French, engineering and medicine? This is a question worth asking, yet at the moment, from a purely legal viewpoint, the answer doesn’t matter. Despite the increasingly apparent disconnect between football and school, none of the nation’s university trustees are technically out of compliance with their university charters.

Desperately seeking leadership

Compliance notwithstanding, the conflict between football and school cannot be denied. What should be done? Josh Rosen is right, they don’t go together. And he, better than most anyone, should know—he’s the one trying to excel at both.

So let someone else run the NFL’s minor league. Perhaps entries in that minor league maintain university affiliation, perhaps not. Either way, remove football from the work of higher education.

No doubt many will resist this idea. They will argue that, because university football’s revenue model has so far survived the recent lineup of antitrust lawsuits, no exploitation exists and no important educational standard is being compromised.

Yet three truths seem to apply.

First, increasingly, the only people who look at university football and don’t see exploitation and educational compromise are people on the university football payroll.

Second, the law is always late. Case in point: the Equal Pay Act became law in 1963 only in the wake of years, if not decades, of women unjustly earning less than men for doing the same job. So while no court has held yet that operating a football team violates a university’s educational charter, or that university football’s player compensation economics violate antitrust laws, that does not mean that injustice is not happening.

Finally and perhaps most importantly, the standard for adult behavior when university football collides with society’s greater aspirations was articulated by Penn State’s board of trustees. In explaining why they fired Joe Paterno for his role in the Sandusky child sexual abuse cover-up, they stated, “…[H]is decision to do his minimum legal duty and not to do more to follow up constituted a failure of leadership.”

One wonders when coaches, chancellors and trustees in higher education will recognize that their leadership responsibility, like Paterno’s, extends beyond their minimum legal duty. One wonders when they will stop ignoring a truth that even a twenty-year-old can see.


William Devine runs a regulatory law practice in Silicon Valley and is Adjunct Professor of Management at Menlo College.

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