Re-Set, Replay & Rewind: It’s time to Revisit Public Policy Goals Underlying Regulation in Sports

This past week, I was privileged to serve on a panel at the inaugural Diversity & Inclusion Conference hosted by the Mid-American Conference.  Throughout the day, multiple administrators and several former student-athletes articulated the challenge of seeing the student-athlete as a person, a unique individual, rather than as a performer at a specific position or as a statistic.  As I reflected upon this experience, a common theme became clear: many, if not most, of the most pressing issues faced by governing bodies in sports today, both amateur and professional, could be resolved by refocusing regulatory efforts to reflect a broader public policy goal of respect for athletes as individuals.

By definition, most sports legislation and regulation requires data and number crunching.  Nowhere is this more evident than under the auspices of Title IX, where the “safe harbor” creates an annual maelstrom within collegiate athletic departments across the country as they strive to ensure compliance by calculating the numbers of athletic opportunities for male and female student-athletes.   Yet, despite all of this effort and after forty-five years and reams of data, the resources devoted to the two main male revenue-producing sports dwarf those received by even the most successful women’s programs.  Even more concerning, none of the data-driven protocols were able to prevent even one of the horrendous stories of sexual assault and abuse now documented at multiple institutions.

Similarly, the recent corruption probe into NCAA basketball suggests an underworld in which young recruits are perceived as commodities to be purchased.  In this alternate reality, the athletes’ academic and educational aspirations are irrelevant.  The only factors of concern are how much rival institutions are willing to bid and how much the student-athlete is likely to demand in return for offering his “services”.  Athletes are reduced to sets of numbers: the amount of compensation required to land the player and the number of “stars” he is graded.

Likewise, in professional sports, much of the criticism of the national anthem protests arises from those who prefer not to have their entertainment venues disturbed by reminders of political issues.   To many, it is disquieting to be forced to see past the NFL uniform to the individual under the pads who is trying to bring attention to very real social justice issues.  The NFL’s game operations manual is of little help in this regard.  Requiring the players to be on the field, in their uniforms standing at attention in a prescribed pose by the time the anthem is played reinforces the image of each individual as part of the larger, collective whole.

Finally, and perhaps most importantly, the entire CTE/concussion issue arose BECAUSE leagues and teams failed to respond proactively to the individual injuries suffered by far too many players.  Had the focus been upon the person, as a person, and not as a player with a skill set at a specific position, the concept of returning to play might never have arisen.

Perhaps it is time to revise amateur and professional sports legislation and regulation to focus upon the individuals who compete on our athletic fields.  At the collegiate level, it is possible to require schools to provide a four year educational/professional plan similar to the IEP or individualized education plan mandated for students with disabilities.  This type of prospective planning, which could be revisited annually, would require schools to consider the individual strengths, weaknesses, needs and aspirations of each individual student-athlete. Ultimately, each such plan should have as its goal the transition of the student-athlete into a successful career path.  A similar program could be instituted in professional sports leagues as part of the collective bargaining process.  In an industry where the next play can result in a career-ending and/or life-altering injury, post-career transitioning is not just a good idea, it’s common sense.  Most importantly, in both amateur and collegiate sports, it would require the consideration of the athlete as an individual, and not a set of metrics.

 

 

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Helen A. “Nellie” Drew is an expert in sports law, including professional and amateur sports issues ranging from NCAA compliance and Title IX matters to facility construction, discipline of professional athletes, collective bargaining and franchise issues. Drew formerly served as an officer and in-house counsel to the Buffalo Sabres of the National Hockey League, after previously working as outside counsel to the Sabres and the NHL. Among her more interesting experiences were assisting former USSR superstar Alexander Mogilny in obtaining asylum status in the U.S. and working on multiple NHL expansions, including San Jose, Ottawa, Florida and Tampa Bay.
Drew teaches a variety of courses that incorporate topics such as drug testing in professional sports and professional player contract negotiation and arbitration. She is especially interested in the evolving research and litigation concerning concussions in both amateur and professional sports.

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