From time to time, the Senate Chair will publish short essays on issues affecting the community. The views expressed are solely his own. Faculty are invited to reply to email@example.com. Please indicate if you wish your reply to be considered for publication.
Reply to Eisenman: Protecting Students, Ensuring Educational Opportunity
COMMENTARY ON THE FACULTY SENATE’S REFUSAL TO FORM A COMMITTEE TO INVESTIGATE IMPROVEMENTS IN HOW OUR STUDENT-ATHLETES ARE BOTH PROTECTED FROM PHYSICAL HARM AND PROVIDED EDUCTATIONAL OPPORTUNITIES
A question before our Faculty Senate at its May 7 meeting was whether it should form a committee to investigate whether improvements are needed in how the School protects its student-athletes’ health and educational opportunities. Our Senate Chair was the only Senate member who openly indicated support for the motion to form such a committee. Because I am confounded by this seeming indifference to what I see as the faculty’s paramount duties to protect our students from physical harm and from diminished educational opportunities, I am writing this in order to provoke a wider faculty discussion that might lead to a different outcome.
No one at the Senate meeting questioned either that there were important issues regarding whether our student-athletes’ health and educational opportunities are at risk or that critical information needs to be obtained before it can be determined whether the Administration is doing enough to protect the students against those risks. Among the more obvious unanswered questions that warrant further inquiry are the following:
Issues regarding the adequacy of our athletes’ protection from physical harm
-If our football players felt their health and safety interests were now being adequately protected, why would they have asked for a vote to determine whether a union was needed to secure such protections?
-If the Administration were now providing all of the safeguards that are needed to protect our football players against the potential life-long damages from the sport, would Coach Fitzgerald have offered the possibility of additional health protections as an incentive to vote against the union? The fact that it took the threat of a union vote for him to consider additional health protections indicates that external pressure for greater protections might play a constructive role. And, if the special concussion identification protections the School is proud of providing for home football games are significant, is there any reason the need for them is less at away games?
-In light of the facts that it has been recognized since at least 2002 that strict safety protocols are needed to try to protect football players from the potential life damaging effects of concussions and that the NCAA has only recently urged its member schools to implement a few of those protocols, has Northwestern implemented all of the recommended safety protocols, including the safety precautions that have been implemented by other leagues, such as the NFL and Ivy League, and that have been recommended by medical organizations, such as the American College of Sports Medicine, and the various international conferences that have produced guidelines on concussions in sports? Furthermore, do our own medical school doctors whom the Administration has consulted on best safety practices all agree that Northwestern is doing everything that should be done to protect our student-athletes not only from concussions, but from the cumulative effects of the routine impacts that are endemic to football and other high impact sports?
- In light of the likelihood that our former football players had been subject to years of concussion risks between the time the need for concussion safety protocols was medically recognized and the time Northwestern implemented at least some of those protocols, what, if anything, is Northwestern doing, first, to identify our former players who are suffering the consequences of having played without the needed protocols and, second, to help them obtain the needed treatment and/or insurance coverage?
- Although Northwestern’s President’s November 2010 Directive on Self-Regulation of Intercollegiate Athletics requires the head team physician to “file an annual report with the president of the University furnishing data on athletic-related injuries,” neither such report nor any data on the nature and frequency of athletic-related injuries has as yet been disclosed in response to the Senate Chair’s inquiries.
Issues regarding our student-athletes’ educational opportunities and the School’s academic standards
-If our football players were, as the Administration often proclaims, successfully negotiating the competing demands of football and serious academic engagement, would the NLRB hearing officer have found that football’s year-around, all-consuming, highly regimented demands made the players more like employees than students?
- With respect to our student-athletes’ educational opportunities, I have never questioned our Administration’s claims that our student-athletes are among Division I schools’ highest academic performers. Nevertheless, after reading the NLRB’s findings as to the year around time demands on the players and the regimentation of their schedules, the question of the appropriate balance between athletics and academics seems worth Senate inquiry, not only for football, but also for other sports where the players are predominately supported by athletic scholarships. Also, in light of William Cohan’s “The Price of Silence,” reviewed in the April 24 New York Times Book Review, about how Duke’s promotion of a variety of big-time sports teams has degraded the intellectual environment of that great University, it would seem especially timely to examine the question of how Northwestern is managing to maintain the appropriate learning environment in the face of the competitive pressures of big time sports, a question that will only become more pertinent if the NCAA adopts the recommendation to give the so-called “power conferences” more autonomy in setting their own standards.
Issue regarding Northwestern’s role in NCAA policies that are widely regarding as unfair to student-athletes
-Finally, Northwestern’s role in NCAA policy-making also deserves Faculty Senate scrutiny. The NCAA has been widely criticized for promoting practices that have exploited student-athletes, (some of whom can barely afford common necessities of college life), and for ineffectual efforts to protect players from concussions well after the risks were well known. The Faculty has an interest in learning whether Northwestern has been complicit in promoting such practices and, what, if any, efforts it has made to reform them. It is easy to target the NCAA for a litany of unfair practices, but if we don’t try to do anything about them, the blame becomes ours. As Walt Kelly wrote, “we have met the enemy and he is us.”
The inadequacy of the reasons given for Senate inaction
Given that no one at the Senate meeting argued that there were not important issues regarding our student-athletes’ safety and educational opportunities, it is important to try to figure out why the Senate decided not to address the subject. As far as I can tell from what was said and not said, there are three reasons.
The rationale that the Senate can rely on the faculty representation on the Committee on Athletics and Recreation
First, several senators suggested that the interests of our student-athletes are being sufficiently protected by CAR, the Committee on Athletics and Recreation, which has some faculty representatives appointed by the President. We should all be grateful for the volunteer service of these faculty representatives, who I understand take their work very seriously and are doing a conscientious job. Nevertheless, CAR should not be a substitute for a faculty committee appointed by the faculty-elected Senate.
It is, of course, possible that the University President will appoint and reappoint to his committees faculty who profoundly disagree with his policies and want to scrap what he is doing in favor of doing what he is refusing to do. But, that seems unlikely. For example, would the President appoint to CAR a faculty medical ethicist who asserts that until the risks are better understood, it is immoral for Northwestern to continue its football program and thereby subject our football players to an unquantified, but nevertheless significant risk of lifelong injury? To be credible, any assertion by the Administration that we should rely on the existing system of faculty athletic oversight would require the faculty to pick the faculty overseers.
The rationale that the Senate can trust that the Administration and coaching staff will do the right thing
However, a deeper reason for the Senate’s failure to insist on independent faculty oversight appears to be the members’ assumption that the Administration, and undoubtedly Coach Fitzgerald in particular, should be trusted to do what is in our student-athletes’ best interests. I have no reason to doubt our athletic administrators’ and coaches’ good faith, their excellent performance of their jobs, or what has been widely reported as our players’ great respect for and trust in them. Nevertheless, to the extent the Senate refused to exercise its independent oversight role because of members’ faith that the Administrators and coaches will always put our students’ interests before their own, I suggest that our Senate has failed in its fundamental duty to our students.
Perhaps, however, the failure was also mine in not articulating strongly enough at the Senate meeting why that faith is unwarranted and why scrutiny by an independent faculty senate committee is needed. What I tried to explain was the following fairly simple point: with respect to protecting our student-athletes’ health and safety, the Administration has a structural conflict of interest that we as faculty don’t have, or, at least don’t have to the same degree.
This conflict arises from three undeniable facts: first, coaches’ jobs and pay to some degree depend on winning games; second, Administrators generally get psychic and financial benefits from winning teams and, third; the more money spent on student-athletes’ health care and benefits, the less money Administrators have available for other uses. Although I have no reason to believe our current coaching staff would ever jeopardize player health for the purpose of winning games or saving money, the two interests can come in conflict and it is not inconceivable that without proper safeguards, some future coaches or administrators might succumb to such temptations. The fact that for years the NFL saved money and protected coaches’ authority by withholding from its players information about the risks from concussions is a sobering lesson about how proper priorities can be subverted when a lot of money is at stake.
The Faculty Senate is, of course, not entirely immune from such conflicts. Many faculty, including myself, get psychic benefits from winning Northwestern teams and, to the extent the University finances might be reduced by paying for expansive student-athletes’ health care and benefits, faculty pay could be affected. Nevertheless, the conflict in both respects is far more attenuated for most faculty than it is for coaches and top administrators. The Faculty Senate’s own raison d’etre derives in large part from the fact that we don’t have confidence that the Administration will always do what is in our and the University’s best interests; we should have the same healthy skepticism regarding the Administration’s always doing what is in our student-athletes’ best interests.
It should not take recounting of the ways Northwestern’s coaches and medical staff failed in 2001 to protect Rashidi Wheeler from death in order to sensitize faculty to the magnitude of what is at stake here. After balancing the downside risk that the proposed committee might find the Administration is doing all that should be reasonably expected against the upside potential that the committee’s work might influence the Administration to adopt the enhanced safety and educational measures that could make a real, even life-saving, difference to our students, there shouldn’t be any question that the proposed committee should be formed.
The concern that the Faculty Senate may not be up to the task of running a special committee to investigate and report on reforms needed to protect student-athletes and uphold academic standards
A final reason for the Senate’s refusal to appoint a special committee to investigate and report on problems regarding our athletic program seems to have been concern that it might be difficult to recruit members for such a committee. Were that a valid concern, it would be highly discomfiting to those of us who labored on the GFC to create the Faculty Senate in the hope that expanding faculty participation in governance would allow for more and larger committees that could make the ideal of shared governance more of a reality. I don’t believe, however, this is a persuasive objection for two reasons.
First, I am confident that faculty will want to serve on this committee because of the intrinsic importance of its goals of protecting our student-athletes from harm, of improving their educational opportunities and of upholding the School’s academic standards. Second, I believe faculty will want to serve on this committee because of the exciting prospect of sharing their expertise with faculty from departments across the University in order to develop the creative approaches needed to protect our student-athletes’ health, safety and educational opportunities.
Because the success of this special committee would depend on drawing members from a variety of disciplines that might include, for example, medicine, law, education, business, communications and arts and sciences, the suggestion that this matter should simply be referred to the Senate’s existing education committee is not a good alternative. That committee has presumably already developed its own agenda priorities and is unlikely to have the multidisciplinary expertise that is needed for the proposed special committee. Furthermore, since no one identified with the education committee spoke at the Senate meeting to support the mission of the proposed special committee, it is questionable whether the imposition of such mission on that committee would be welcomed as an important priority.
In sum, because I tried and failed at the Senate meeting to sound an alarm bell that would motivate the Senate to do what I think it has a duty to do, I am writing this in the event that other faculty might happen upon it and find the cause worth pursuing.
John S. Elson
Professor of Law
John S. Elson
Harry B. Reese Teaching Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue
Chicago, Illinois 60611
 http://america.aljazeera.com/watch/shows/america-tonight/america-tonight-blog/2014/1/9/ncaa-head-games-theveryskewedconcussiondataincollegefootball.html; http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0056805.
United States Government before the National Labor Relations Board Region 13, Decision: Case 13-RC-121359; On April 9, attorney's representing Northwestern requested a review of the regional NLRB ruling on the grounds of "erroneous…factual issues" and "prejudicial error." See: http://dradis.ur.northwestern.edu/multimedia/pdf/nlrb.pdf