Drake Group President: Congress Must Protect Student-Athletes’ Rights

The fight to protect student-athletes’ rights has been a long uphill battle. The injustices that college athletes suffer at the hands of their academic institutions are many, including a shameless disregard for athletes’ physical, financial, and educational well-being.

To make matters worse, the NCAA, founded to protect student-athletes from exploitation, has failed in its mission in countless ways.

Fortunately, in 1999, the Drake Group was founded to advocate for reform in college sports.

For the past 20 years, the Drake Group has been a vocal defender of athletes’ rights and has sought legislative protections to safeguard those rights. Its stated mission is to “defend academic integrity in higher education from the corrosive aspects of commercialized college sports.”

In September, the Martin Center interviewed the Drake Group’s president, Donna Lopiano, to learn more about the organization’s work and goals. The transcription has been edited for clarity and length.

A group of U.S. senators released a College Athletes Bill of Rights statement over the summer and promised future legislation enshrining athletes’ rights. The Drake Group applauded the initiative. What specific legislative actions does the Drake Group hope that Congress will take? 

The Drake Group has been around for about 20 years and we were in the midst in the last year or so of supporting a bill in the House, which would have established the two-year congressional commission to examine the need for reform in intercollegiate athletics. Since that time, since that bill was filed by Representative Donna Shalala from Florida, a lot has happened. COVID has happened. Significant racial protests have happened.

I think a significant piece of the puzzle has been Senator Cory Booker. [He] has come off the campaign trail as a presidential candidate and is now playing a leadership role in asking for athletes’ rights and bringing public attention to that. Senators Murphy and Blumenthal from Connecticut have long asked for a real NCAA reform effort. The Drake Group has been with the senators and representatives, trying to figure out what’s the next step in reform.

Adding to all of this, and I think a significant precipitating factor, is the fact that there are 34 states now that have pending legislation or that have already passed legislation that would give college athletes the right to exploit—to monetize—their own names, images, and likenesses separate from their institutions of higher education. [The legislation is] in direct contradiction to current NCAA rules, which are very onerous, that don’t leave any room for college athletes to make money outside of school—very much unlike other students who, if I’m a performing arts major or I’m a musician, I can earn money and play a gig on the weekend in a local restaurant or bar.

We know we need federal legislation on athletes’ NIL [name, image, and likeness] rights because we can’t have chaos among the 34 states. But I think what has changed the game is Booker, Blumenthal, Murphy, [and] seven other senators, saying “we’re going to go after a lot more than that [NIL rights].” There are many important issues here, not the least of which is athlete health and well-being and protection from athletic injury, economic exploitation, and educational exploitation.

College athletes in the revenue-producing sports, most of whom are predominantly minority, predominantly black, are being specially admitted into institutions, thrown into less-demanding courses, and forced into academic majors that are less demanding. And as a result, they leave school without the school fulfilling the educational promise of a college degree.

So all of those things have lined up in a manner that suggests Congress may very well act in a big way on this issue.

Are there any other additional protections that such legislation would include? 

Well, there’s lots to the Drake Group. What we’re good at doing is taking concepts and saying “this is how intercollegiate athletics works. If you want to get this done, then this is how you should attack it.” So, we submitted a 20- or 30-page bill that would accomplish all of the things that were in the senators’ athletes Bill of Rights. Do we think all of that is going to get adopted lock, stock, and barrel? No. But at least it gives them a good blueprint of how to attack these things.

[NIL rights] is an important piece of that legislation. And what this would say is: “stay out of the athletes’ business, they should get any job they want short of signing on the dotted line with a professional sports team. Or if you’re an individual athlete, entering into a contest for price pay—pay for play. That’s the only reason the NCAA should make them ineligible. [In] everything else, they should be able to make money like anyone else.

And if schools are worried about boosters inappropriately siphoning money off to those athletes, in quantities that are in excess of their fair market value, or the services that they render, we can easily set up a third party independent, NIL commission that would set the rules, that would review the contract terms, that would protect the athletes, and that would ring the bell if there was inappropriate or fraudulent involvement of people trying to take advantage of these kids.

So we think there are solutions to NILs. We think we should avoid the athlete and the institution getting into business together. Because if I were an individual and I were employed by a college or university, I could not use the name of my university for private gain. That would be against the law.

We think that mechanism [the athlete and the institution getting into business together] should not fly because [it would involve] the school taking advantage of the athlete. Except, except: We think it would be a great idea if 100 percent of those revenues, both on the athlete side and the institution side, went into a National Medical trust fund that would provide long-term athlete disability insurance for athletes. A fund that would be there 10 to 20 years from now, when a lot of these football players are going to be suffering from Parkinson’s or Alzheimer’s or early onset dementia; God forbid CTE (Chronic traumatic encephalopathy).

We know that head trauma is a serious problem in many sports. And yet, there is no fund to [address] that like there is for the NFL. The NFL has set aside a billion dollars to protect some probably 13,000 or 14,000 former football players. That’s the number of kids that play every year in division one football. In fact, not even division one football, that’s just the Football Bowl Subdivision in 10 conferences. And there’s no fund, there’s no set-aside by the NCAA, there’s no set-aside by the institutions [for athletes’ medical expenses]. They take that cash and make it seven, eight-figure coaching salaries, or they build lavish facilities. But they’re not saving it or worrying about the health and well-being of kids.

We also think that that fund [should] be subsidized by institutional rights fees [and] television rights fees, which are considerable. If you take a little bit from every rights agreement, that can build the fund.

And we also think that there has to be a commitment on the part of institutions to start paying the insurance bills and the medical expenses of intercollegiate athletes. Most people don’t realize that, in order to try out for a team, the school says to the athlete, you either have to buy your student insurance on campus, or we have to use your parents’ policy. Schools aren’t buying primary insurance.

The athlete won’t speak up because of the power differential between the coach and the athlete.

What the schools are doing is making out like bandits because the student brings the primary insurance, [and] the school takes out a cheap secondary insurance policy. And those policies stop being applicable two years after you leave school. So if your knees have to be replaced 10 years from now, if you’re suffering from dementia 15 years from now, there is no source to help these athletes, even though we know that that’s part of their future.

We need to make sure that athletes’ medical care is a given. The institution provides the basic policy [and] guarantees all medical expenses associated with athletic injury. And that [should] be a firm promise.

We also think this is an opportunity to change the power differential between the coach and the athlete. Right now, everyone is aware that athletes suffer abuse at the hands of coaches. It may be verbal abuse, it may be emotional abuse, it may be coaches telling athletes, as a form of punishment, “you have to run 100 Stadium steps” or “20 laps”—using exercise as punishment. And that’s dangerous for athletes.

The athlete won’t speak up because of the power differential between the coach and the athlete. The athlete knows that if they complain against the coach, the coach can take their scholarship away because these are all one-year agreements. The coach can take athletes’ starting position away, they can sit them on the bench as punishment. There are many different ways that coaches can take retaliatory action against athletes. That’s why athletes don’t speak up: to protect themselves.

We’re proposing that a key part of this legislation be a firm five-year commitment to athletic scholarships, which removes the fear of the scholarship being revoked. We also think there has to be [access] to an independent agency to complain to in those situations.

We also think that the athletes have to be much more involved in the governance of intercollegiate athletics and should have 30 percent of all the board of directors seats on the NCAA, for instance. Not that the athletes themselves should serve; they’re young, they’re inexperienced, they’re full-time students. But they should select someone to represent them.

We’re trying to figure out how Congress can demand that these things happen in intercollegiate athletics. And the “carrot” that Congress has is humongous. Every year, $130 billion is given by the federal government under the Higher Education Act to colleges and universities to support student attendance. This fuel that is used to fund athletic programs is a big “carrot.” If Congress says “you don’t do this, you don’t get this money,” that’s a big deal.

In the event that Congress doesn’t act, is there anything that states can do?

Well, I think we’re seeing states now—those 34 states that have enacted NIL rules, there are many of those states who have also inserted other provisions in addition to employment rights. But they’re all over the place. Some of them have established an academic trust for athletes who don’t graduate but want to return to school later.

But they are very different: 34 states, 34 different provisions—which is why Congress should step in. And Congress has the advantage of a 30,000-foot view, the wherewithal to study and not react too quickly. These are tough issues that have to be thought out. So Congress is probably in the best position to do it.

If Congress doesn’t act, then the states could. Then you run into real dilemmas because let’s say California decides every athlete gets a five-year scholarship. Then, athletes will go to California schools. And then everybody else goes crazy because [California will have a] “recruiting advantage.” You can try to let that system play out and see what happens, whether everybody ups the ante to benefit the athletes. But it’s [opening] mass mayhem for what is an interstate commerce: business athletes play each other across state lines all the time. So, do you have to go through that chaos?

How has the NCAA failed to protect college athletes? 

The NCAA was started in 1906 because athletes were dying playing college football. Then-President Roosevelt pretty much said to the NCAA: “I’m going to ban college football unless you get your act straight and start governing this sport.” That was the origin of the NCAA, it was an athlete protection response to this concern.

We know how to make football safer; the colleges and universities aren’t willing to adopt those rules.

The NCAA is nowhere near protecting student-athletes’ education, student-athletes’ health and well-being. They’ve become a trade association, protecting the money-making ability of their member institutions and keeping athletes as minimum wage employees. It’s a one-year scholarship, you can’t work outside [the school], [and] you’re limited as to how much your scholarship money will cover.

They’ve been in the business of controlling athletes for the benefit of the institution, as opposed to protecting athletes from the institution. When the NCAA gets sued for concussion, for instance, the NCAA says “we’re not responsible for athlete health, it’s them, it’s our members.” So, they throw their member institutions under the bus.

But the NCAA, today, can pass a rule that says “all of our member institutions as a condition of being a member of this association, have to adopt these 30 consensus medical statements, which will protect athletes from everything from heat-related illness, to concussion, to sickle cell syndrome.” The NCAA adopts none of this. And Congress knows that, Congress has little respect for the NCAA.

Let’s talk about how the coronavirus has affected college sports. Colleges and college sports organizations such as the big 10 have decided to resume practices and games this fall, despite concerns about the virus. For example, UNC-Chapel Hill has moved all of its classes online for the fall semester, but it’s still playing football. What do you think of these decisions?

Higher Education has lost its mind. The whole notion of bringing kids back to campus—students in general—is a financial decision, not a health decision. We know that we don’t have a vaccine, we don’t have good therapeutics. We don’t have testing that is 15-minute turnaround testing. We know all this and why are we bringing college-athletes back?

Athletics is beholden to the television monster. [They’re looking at] $50 million to $100 million a year in lost media revenues for the top 100 schools in this country. And they haven’t put any money aside, there’s no insurance for this pandemic. So what are they doing? They’re willing to sacrifice their athletes for that $50 million to $60 million that they’re going to lose this year, and it’s that simple. Because there is no way we can protect these athletes, there’s no way we can protect the student body that we can’t control.

We’ve learned a lot over the past 10 years about how dangerous football can be for the brain. Do you think we’ll see changes to football as more research emerges about concussions and long-term brain health?

We know how to make football safer; the colleges and universities aren’t willing to adopt those rules. The Ivy League has really led us in that the Ivy League is a conference which doesn’t even allow its football teams to attend postseason play. It has made rules changes. It has said: “no contact at all allowed in practice.” That’s not hard. You can use the tackling dummy. Do you have to suffer brain trauma in practice?

It’s repetitive brain hits, not concussive brain hits that result in CTE or long term dementia, Parkinson’s, etc. It isn’t somebody knocking you out, it isn’t the one blow; it’s repetitive hits. [We should do] whatever we can to minimize that. We know that we don’t have to have kickoffs at the 40 or the 35. You could eliminate the kickoff if you wanted to. Why are we keeping a portion of the game in which you let players build up speed over 50 yards to see how hard they can hit the receiver of a punt or a kickoff? Why would it change the game terribly to forbid that?

I think we have a long way to go to make football safer and to make collision sports safer. There is no reason why ice hockey has to be a collision sport to the extent that it is right now, where you just take off and try to kill somebody next to the boards. Women’s ice hockey doesn’t even allow it. It’s a game of skill, it’s a game of skating. This is how games are supposed to be won, not by harming your opponent, but by being more skilled than your opponent.

Shannon Watkins is a senior writer at the James G. Martin Center for Academic Renewal.