Sara Ganim Narration: When we set out to report about head injuries in college sports, we knew we wanted to hear from athletes, but we also knew we probably wouldn’t get very many of them to talk to us. And that hunch was right. Only two returned our calls and only one would talk on the record. And that was former Texas cheerleader, Kaitlyn Benkhe.
Kaitlyn Benkhe: I’m honestly shocked that they claim to not have that data. The NCAA needs to say in order to compete at all, you have to have done these.
Sara Ganim Narration: Any reporter who covers college athletics will tell you it’s pretty well-known, college athletes are terrified of speaking out about controversial topics because they don’t want to appear disloyal and they believe that they could lose their place on the team if they break the rules and talk to the press without permission. Yes, you heard me right, speaking to the press without permission is often against the rules. and that’s really interesting, isn’t it? Because if you’re a college athlete at a public institution in the United States of America, that school is considered a government agency. It’s funded by taxpayer dollars and that brings with it certain protections. Number one being the First Amendment.
Frank LoMonte: It is a horrible, horrible optic
Ramogi Huma: The culture of secrecy, we have been very familiar with that, but the fact that they’re putting it in writing to that degree is, is really terrible
Frank LoMonte: And I just don’t think that that higher ed wants to be projecting out there in the 21st century.
Sara Ganim Narration: From the University of Florida’s Brechner Center for Freedom of Information, I’m Sara Ganim, and you’re listening to an episode of ‘Why Don’t We Know’ the podcast that dives deep into data and comes out with real stories. For this episode, I brought in two people who have been leaders on the issue of athlete rights. Ramogi Huma, who is the executive director of the National College Players Association:
Ramogi Huma: Happy to be here
Sara Ganim Narration: and
Frank LoMonte:I’m Frank LoMonte
Sara Ganim Narration: Frank Lomonte, who is the director here at the Brechner Center for Freedom of Information.
Sara Ganim: With college athletics on the brink of a monumental turning point, there’s really no better person to talk about this than you, Ramogi. For those who don’t know you, Ramogi is at the forefront of the movement to get college athletes more rights. Most recently, he’s the guy who successfully pushed California to allow athletes to get paid, which has the potential to blow up the entire NCAA structure and Frank, you’ve been working on this topic for years. Whether universities are trampling on the free speech rights of student athletes. Now, you’ve written a law review article which is the reason we have this research and it made perfect sense that we’d include your findings in a podcast series about secrecy. For this episode I want to start by jumping right into the data.
Our student researchers used public records requests to obtain the rulebooks and media policies for athletes at 58 of the largest public universities in the country and what they found is that 50 out of 58 policies categorically prohibited athletes from speaking to the press without first getting approval.
Most policies said something along the lines of, if a reporter contacts you, you must refer that reporter to the athletic department’s sports information or media relations office and that office will decide if you can talk and honestly, having covered major sports investigations, and watched how universities operate for years. I can’t decide if i’m surprised by that number or not. I mean, we know that athletics are notoriously secret and we know they tell athletes not to talk. But, to put it in writing in such a way Ii guess I didn’t know they were that bold. So, I want to start with this question, to you, Frank, is this a violation of the First Amendment?
Frank LoMonte: Yeah, I don’t think there’s any question that a college athletics department at a public university lacks the authority to tell its student athletes, “You’re forbidden from speaking to the news media, 24/7, 12 months a year, around the clock.” The starting point is a public university is a government agency, and government agencies are all subject to the constraints of the First Amendment. Any kind of a policy or a rule or a handbook that they have that’s inconsistent with the First Amendment is void and it’s unenforceable. And we kind of analyzed it a couple of different ways. We analyzed it like, “Well, what if a student athlete is really more like a student? It’s clear that a public university doesn’t have the authority to tell its students, “You’re forbidden from talking to the news media about anything during every waking hour of your life, right?” There’s no way that they would have that level of control over their students. So if an athlete is seen as having the student level of First Amendment rights, then you definitely can’t gag them from speaking to the media. What if they’re seen as having the employee level of First Amendment rights instead? Because I think a lot of colleges will probably say, “We think we have more control over athletes than our students because we give them some money, we give them some benefits, we give them a uniform.” But even there, the case law is really clear there’s half a century’s worth of unbroken legal precedent that says you can’t stop your employees from talking to the media either. So no matter what hat they’re wearing, whether they’re wearing the student hat or the athlete hat or the employee hat, it just doesn’t seem possible that a university has that level of control over their speech. I should add, too, that a university would run screaming from classifying its athletes as employees if they argued for the employee level of benefits. Universities have sought very, very ardently not to classify their athletes as employees. They don’t want to get the workers compensation, disability, death benefits or any of the other benefits that would come with employee status. So, it’s just a nonstarter to say “we don’t give you any of the benefits of employee status but we claim you’re an employee for the purposes of taking away your First Amendment Rights.”
Sara Ganim: Ramgoi, Does this surprise you that number 50 of 58 policies?
Ramogi Huma: Yeah, absolutely. I, it doesn’t, you know, the culture of secrecy, we have been very familiar with that, but the fact that they’re putting it in writing to that degree is really terrible. Think about this,players might watch their teammate die and a hazardous workout and not be able to talk to the media about it. And to have that kind of a gag over players, you know, as a matter of policy is really unforgivable.
Sara Ganim: Ramogi, your focus has always been on making sure athletes are not being abused at the college level. and that means everything from adequate care for injuries: mental health, and preventing emotional abuse of athletes by coaches but working toward some kind of compensation and Ii wonder if you think some of those issues might not still be something you need to fight for if athletes could speak out when abuses occurred?
Ramogi Huma: I think that would be a huge element. I think if players felt like they can speak out without retaliation, without losing their scholarships. I think that in many of these programs that are abusive and, and to be clear, this is not a school here in a school there. The rampant abuse combined with these restrictions as an excuse to get rid of a player. I mean, it’s systemic, it’s a systemic problem. And I think that if players had protections, they would be more willing. It still wouldn’t be easy, but they’d be absolutely more willing to speak out and try to get rid of some of these coaches and trainers that are really putting players in harm’s way.
Sara Ganim: As we are sitting here talking about this today, there are two major events taking place in the country, the Covid-19 pandemic, which has a tremendous impact on athletes and a groundswell of protests, the size of which this country hasn’t seen since the late 60s challenging how we deal with institutional racism. Both of these topics matter in this conversation. I want to start with race, because Ramogi, I looked at the NCAA statistics this week. There is a really big disparity between black players and black leadership. For example, 56 percent of basketball players are black, while only 28 percent of head coaches are black. For football, it’s 49 percent of athletes versus 15 percent of head coaches and overall, only six percent of sports information officers are black. That’s traditionally the title held by the person in charge of talking to the media and I wanted to get your reaction, like how all of that plays in?
Ramogi Huma: What’s interesting is that what, for a player who would want to exercise their freedom of speech on this issue, you know, they could otherwise be met with some of the people who are white that have really no, you know, in a sense skin in the game. No really real understanding as to how harmful that is, what a threat that is to the black community. And so for a player, they would want to speak out. They might be met with people over them. They don’t even understand the issue. They don’t think it’s a big deal. They don’t think racism exists. They don’t think there are, there are any bad police officers and much less why a football player should be speaking out about something that’s not about football. So I think that dynamic alone puts players in a tough spot now and piles on the policies and the culture of control when it comes to player speech. And it makes it much more difficult.
Actually, I was on a zoom call with about a dozen players, African American players from a particular university in the days following the death of George Floyd. And it was supposed to be a discussion about college athlete rights and NCPA, but almost all of it was talking about racial injustice. And I mean, these players were devastated, you know, and for me looking at 18, 19, 20 year olds who were questioning why aren’t, why isn’t my coach speaking out? Why isn’t my program speaking out? And also, I mean, really conditioned. I mean, the first thing that they looked to was their coaches and program because that’s who controls their speech. You know, what I left them with in part was, Hey, don’t look to your coaches and programs as they speak out, that’s great, you know, go ahead and approach them. But you’re a human being before you’re an athlete and you have every right to talk about these issues.
Sara Ganim: I guess what struck me about it was that it was predominantly white men telling predominantly black men that they couldn’t talk, right? That’s like if you break it down, that’s really what it comes to and I’ve witnessed that personally, I was.. because of you actually, in the locker room at Georgia tech.
Sara Ganim Narration: In 2013, Ramogi’s athlete advocacy group organized a silent protest, where players at several schools wore armbands with the words “all players united.” I covered that protest.
Sara Ganim:And I was interviewing a young, I mean, he couldn’t have been more than 19 years old, young player with an armband on. And as I started to ask him why he was doing it, I could see his eyes shifting and he just like mid sentence shut down. And I turned behind me and there was this, you know, probably 60 year old, white, you know, man assistant sports information officer who I’ve told them no, you know, and actually the system I figured out by watching this happened around the room with other reporters, with the sports information, officers would close their eyes and the players would stop talking. And that was just like, I mean, I’ll never forget that moment. I’ve talked about it since,
Ramogi Huma: Yeah. I mean, I think you firsthand witnessed the actual dynamic. I, you know, I’m always kind of from afar, helping players who want to speak out, but I think too, what’s important is when you talking about the all players United way, what they were standing for, that that message was about health and safety. It was about equal rights. It was about making sure that they didn’t have any less freedoms than other people. These are very important issues to a disproportionately black team. I mean, you have half the rosters. You know, many of these schools are black, which is disproportionate to the enrollment numbers. You know, the average school and in the same conferences only have a 3% enrollment.
So largely when you’re talking about not allowing you to go rides to college football and basketball players, for instance, there’s a racial undertone that there is a disproportional really hardship that they’re facing when they don’t have equal rights as, and is with that context that they’re being shut down, that you witnessed. You know, the very, probably the only time, you know, in recent history that players from different campuses try to speak out together on those issues and you saw how easily it can get shut down. Every school that participated. It was one time exactly one time. And after that, every single coach put pressure on the players not to do it again.
Frank LoMonte: It is a horrible, horrible optic that the vast majority of college athletes are black and the vast majority of sports information people are white, and they’re telling them what they can and can’t say, particularly about social and political issues that in no way compromise the ability of the athletic program to do their job, it’s just a bad optic. It’s a bad look, and I just don’t think that that’s higher ed wants to be projecting out there in the 21st century.
In the land of the First Amendment, speech about social and political issues is right there at the top of the pyramid of what is protected. So if you’ve a policy at your government agency that says people can’t talk about anything, and it doesn’t make any allowances at all for addressing social and political issues that have nothing to do with your ability to do your job, then that’s almost certainly an unconstitutionally broad policy. That’s the way all of these athletic department policy read. None of them say, “Go ahead and talk when you don’t have the helmet on, when you don’t have the uniform on, if you want to address political or social issues you care about.” Not one of them says that.
And so you would have every reason to believe that you are under the control of the athletic department 24/7, every waking hour, including when you want to talk about those political and social issues that every other 19, 20, 21 year old in America feels passionate about.
Sara Ganim: And I mean, Ramogi, you’re the one who talks to them the most you’re in the most contact with these players. Is that what they think? Do they think they can’t talk about anything?
Ramogi Huma: Yeah. I mean, they know that anything they say represents the university that’s, what’s hammered into them all the time. They, they are very aware that even if, when they’re at home, if they send a tweet or a post on Instagram, all of its subject to scrutiny. And matter of fact, these universities, many of them are hiring agencies to monitor all the players, social media. And if there’s a violation or anything that comes up that the university doesn’t like, they can lose their scholarship.
Sara Ganim: Frank, you wrote about this a couple years ago, right? That’s not legal either?
Frank LoMonte: No, it’s definitely not legal to tell people, using your governmental authority as bludgeon that they have to stay off of social media or that they can only say positive or favorable things on social media, there are tons of these policies that are unconstitutional and just begging to be challenged.
And I think you have to look at the social media policies and the news media gag policies together, right? You’re a college athlete, you don’t own a printing press, you don’t have any other ability to engage with the public, those are your two ways of engaging with the public. You give an interview to the news media or you go on Twitter. And both of those avenues have been cut off. Both of those, the most effective place the 19 or 20 year old could try to reach out and say, “Hey, there’s something wrong here. People are being abused, I’m being forced to run sprint at 105 degree weather. I feel like I’m going to pass out, I’m not getting hydrated.” Those types of things that people ought to have the ability to talk about, every avenue of reaching out to the public is cut off.
Sara Ganim: Let’s talk about Covid-19 for a minute. Are college athletes able to participate in conversations they will play again in the fall?
Ramogi Huma: You know, they really haven’t been engaged. You know, the players I’ve talked to, they have no idea. First of all, what the risks even are, they’re not being told about the risk. So there’s no informed decision. There’s no informed consent. They’re being told that, that, you know, when to report for so called voluntary workouts, there are no voluntary workouts. You know, when, when it comes to college sports, they’re, they’re very, they’re pretty much mandatory. So, and they don’t know whether or not, if they choose not to go, if they’ll lose their scholarship. So they’re operating completely in the dark with the same power dynamic,
Sara Ganim: So the quotes that I’ve seen, that voice concern, they’re anonymous, they’re not quotes with a name attached to them. Is that pretty much, I mean, is that pretty much across the board what’s been happening? If they’re voicing concerns or doing it anonymously
Ramogi Huma: Typically and ever since whether it be COVID or health and safety or any kind of injustice at, especially at a particular program, it’s almost always confidential. I was on a call yesterday with a zoom meeting with governor Gaza, Gavin Newsome’s staff. And because they had asked to talk to some of the players who had concerns about reopening college sports. And I had to get assurances that their identities will be kept confidential. And they gave that. And with that, we had players participating in finally being able to speak openly. And, and yet they still wanted that, you know, the confidentiality
Sara Ganim: I mean, what strikes me about that is COVID-19 is something that affects everybody in the world. It’s I mean, it’s like universities are saying, sorry, athletes. You’re not allowed to talk or have an opinion about something that literally everybody on earth has an opinion about. That’s not an exaggeration. Like this affects everyone. Everyone’s talking about it. Everybody has wants to throw in their 2 cents about it. And now you have athletes who will greatly affect because they’re, they’re going to have to gather and they can’t talk about it.
Ramogi Huma: Definitely. And no one can cleanly clearly know all the risks. I mean, there was an op-ed from Florida State player who was the first known to have a contracted COVID. And he had a very hard time. It was actually pretty serious. And his dad also contracted it who, and he almost died. His dad used to play in the NFL, played at USC. We know players are gonna, or whether or not they want to, they’re going to be playing in many of these programs. So we hope that their youth will save them. But there are statistics out there that even the NCAA identifies certain athletes as at risk specifically for COVID, which means if you have high blood pressure obesity, which many of these linemen would fall into that category, sickle cell, which is between sickle cell and hypertension and African American communities.
There’s, it’s more prevalent, but, and also just this undertone undercurrent, one of the players yesterday talked about how their coach said that essentially the universities were talking about how the players could be used as the test subjects in returning to campus.
Sara Ganim: Frank, you found 50 or 58 colleges had these gag rules. Right. But you also wrote in your paper that you thought the number was likely even higher. Can you explain that?
Frank LoMonte: Yes, so for some of the schools that wrote back to us and told us, “We don’t have any written institution-wide policy.” The response was that’s a coach by coach or a team by team decision.
And we know from years of talking to sports writers and sports editors that they encounter these policies everywhere, it’s not 80% of schools, it’s 100% of schools. So we strongly suspect that even in those institutions where there’s not a formal written policy in handbook somewhere, but the coach’s telling everybody, “You don’t talk to the media, and if you do, you’re going to answer to me, you stay on message, you stay on script, you get approval for everything.” So I suspect that the number is really quite a bit closer to 100%.
Sara Ganim: So it’s just not in writing.
Frank LoMonte: It’s not in writing because it doesn’t have to be. The relationship is so intimidating, the power differential was so profound that nobody is going to go off script, nobody is going to go off message, nobody is going to risk being in the coach’s dog house just for giving an interview.
Sara Ganim: These policies are rationalized by universities as an attempt to manage distractions. The theory is that it keeps athletes from unwittingly sharing information with people who don’t have their best interest in mind. But we know from some really powerful modern examples that when athletes are able to speak freely, they have real power to bring positive change.
ABC News: We’re talking about Colin Kaepernick, he’s the San Francisco’s 49er’s quarterback and he’s been refusing to stand for the national anthem
KTVU: Ultimately its to bring awareness and make people realize what is really going on in this country
Sara Ganim: The general public listens to and respects athletes and what they have to say, and with that ability to come forward, they do have a lot of power.
Ramogi Huma: Absolutely. They have a lot of potential power and a lot of is from their visibility and fan base. People that look up to them, the access to the media, people in the media always, you know, are constantly wanting interviews from any of these players. And those players have an opportunity to bring awareness to anything they want to bring. And, you know, I think that’s clear. And, and, and I’ll give one example.
Marvin Wilson Instagram: Yesterday I took a stand. It was not only for me, FSU football. It was for big George Floyd.
Ramogi Huma: There was a football player who spoke out about his coach’s response, that he had talked to all the players kind of touched base about various issues happening in around social injustice
ESPN College Football: Florida State football coach Mike Norvell told the athletic he had a back and forth individually with each of his players. Florida State star defensive lineman Marvin Wilson took issue with that characterization tweeting quote “this is a lie and me and my teammates as a whole are outraged.”
Ramogi Huma: very, very rare players, spoke out publicly and said, that’s a lie, You know, he’s, he hasn’t talked to all of us. And until, and until further notice we are boycotting. And, you know, that was a powerful statement.
ESPN College Football: Mike Norvell then responded saying “I’m proud of Marvin for utilizing his platform to express his reaction”
Ramogi Huma: Not too long after that, they were actually involved in team activities that protested the racial injustice and policing. So players have power. It’s very rare that they will do. But I think that absolutely, they have a platform. They have a platform that can, you know, raise awareness. And I think the university, in some cases, fear is that because if that platform were to alienate, their corporate interests, their economic interests in any way, or their coaches, personal preferences or comforts, that’s when they get uncomfortable. And I think that that is part of the resistance to, you know, to let him, let him players speak freely.
Sara Ganim:I think I should full disclosure, let everyone know that you, Ramogi, and I have had a reporter-source relationship for almost 10 years now. And I mean, it’s been constant, but you call me up and say, Hey, there’s this really horrible thing happening. There’s this abuse happening? Let’s do a story. And for years I’ve watched you also struggle to get those stories, the attention they deserve, usually for the same reason, which is talking to the athletes is nearly impossible. And reporters like me have to be creative and find ways to tell the story without the athlete most of the time. And I mean, even after something major happens like a death or a major injury, I mean, can you kind of run through some of the examples that were most frustrating for you or you’re, you’re doing what you do best, like going out there and trying to shine light on these incidents, but he can’t get the players to talk.
Ramogi Huma: Definitely. I mean, I really can’t share too many details about the most frustrating because the players never spoke. And without the player speaking as an organization, we can’t go hurling accusations. And so that’s the most frustrating times, but you’ve seen me struggle. You’ve seen how, and you’ve talked to some of the athletes here and there, the few that were willing to talk really, you know, depending on anonymity and, you know, there was one that comes to mind at what most recently at Maryland.
PBS NewsHour: 19-year-old offensive lineman Jordan Mcnair was hospitalized after he had trouble breathing and standing upright
Sara Ganim Narration: In May 2018, Maryland football player Jordan McNair died after collapsing on the practice field.
WBAL- TV Baltimore: An independent investigation into the death of football player Jordan McNair found the university is responsible for his death.
Sara Ganim Narration: And a 192-page investigative report later revealed members of the coaching staff subjected them to serious physical and verbal mistreatment. Quote “a culture where problems festered because too many players feared speaking out.”
Ramogi Huma: The players really had to leak information to the press and you know, Central Florida, there was the death of Ereck Plancher in 2008, the players had a leak of information.
WESH 2 News: The University of central florida’s football player is dead after off season conditioning drills on campus.
Sara Ganim narration: We talked about Ereck Plancher’s death briefly in the last episode because UCF refused to hand over aggregate data on head injuries by claiming their athletic association is private, even though when Ereck Plancher’s family sued over his death, they argued in court it is public. Ramogi experienced a different kind of secrecy from UCF athletics…
Ramogi Huma: The players were told not explicitly not to talk to the media. Misinformation was coming out and the players, as a matter of policy, weren’t allowed to talk to the media. Thankfully, some of them did, you know, they, again, demanded anonymity. Those are some of the extreme cases, but there is a whole litter of broken bodies that did survive. You know, that also, if, if players were, were able to blow a whistle without retaliation to speak up, maybe the culture in those programs would change. One of the issues I brought to you several years ago was at the university of Illinois
CNN: The girls were divided for practice with one group, predominantly black treated much worse and criticized for their culture.”
Ramogi Huma: And, you know, my approach has always been not to ever try to force anybody to pressure anybody to speak out, but to lay, to lay out options.
Sara Ganim: What we ended up doing as a workaround was we talked to the players’ mothers
CNN: She was humiliated, she was yelled at and she was always degraded.
Sara Ganim: That level of control that they had that fear that they instilled in those female players that you know, that they couldn’t be the ones to tell their own story.
Ramogi Huma: The last thing that players want to do is go up against their university. I mean, it’s very, I can’t even imagine a player just voluntarily making up some accusation against a powerful coaching program, just for kicks. You know, just by the time they come to us, they’ve gone through hell, honestly, and they feel very isolated, lonely. They don’t feel empowered. They feel very scared.
Sara Ganim Narration: To this day, Illinois policy still says that media interviews have to be pre-arranged even though those stories led to the firing of a coach.
How would you describe your experience with Greg Winslow as your coach? “
Horrific. It made me hate the sport.”
“As a manipulator, a monster.”
Sara Ganim Narration: The examples are abundant.
WCNC: Coach Qui Han was physically and mentally abusive to her and other young gymnast
Sara Ganim Narration: At the University of Utah, it took years to remove a swimming coach whose players complained privately about cruel and manipulative behavior. At the University of Nebraska:
KMTV 3 News Now: Nebraska softball coach Ronda revelle has been placed on paid administrative leave
Sara Ganim Narration: Softball players said an abusive coach made athletes play through painful injuries. One player later told the Washington Post: “The truth is there is no one athletes can report to. Everybody that an athlete could trust or may rightfully trust, they still work for the university and answer to the university.”
New York Times: It is one of the worst sexual abuse scandals in the history of sports
Sara Ganim Narration: And of course, I think it goes without saying, This is part of the reason well known abusers like Larry Nassar at Michigan State,
NBC News: Dr. Larry Nassar was the head doctor for USA Gymnastics
WXYZ TV- Detroit: Facing two account of first degree criminal sexual conduct
Sara Ganim Narration: And Richard Strauss at Ohio State
NBC News: Abused male athletes from 14 different sports
Sara Ganim Narration: Were able to abuse athletes for many years.
Sara Ganim:Frank, in the law review article that you wrote recently on this topic, you said this, which I found to be really compelling so I’m going to read part of it: “Athletes are uniquely vulnerable to exploitation because of the cultural norms of competitive sports, with their emphasis on conforming to rules, obeying authority figures, and stoically tolerating pain. Almost surely, these serial abusers would have been stopped far earlier, sparing generations of victims, if athletes felt empowered to take their safety concerns to the public.” And to be clear, you’re talking about the Larry Nasser’s of the world here. Can you expand on that?
Frank LoMonte: Yeah, so some of the scariest and most toxic of these policies that you’ll see on the books in athletic departments are very explicitly anti-whistleblowing policies. They don’t just say don’t talk to the media, they’ll even go further and they’ll say, “If you have a problem or a complaint or a concern, keep it in the family,” that’s a not uncommon type of a phrase that you’ll see in an athlete handbook. Kent State has a policy like that, Iowa State has a policy like that. We saw that several times where people were being told not just clear your interactions with the news media, but don’t talk to anybody external to the program if you have any concerns about the way the program is running. And so that is an explicit anti-whistleblowing policy. And it seems backed up by the threat that consequences will be brought down on you by the team, maybe you’ll get benched, maybe even worse, you’ll lose your scholarship. And the amount of power that an athletics department holds over that student athlete really can’t be overestimated. You think about when you’ve got that athletics scholarship, not just your playing time is at stake, your room and board is at stake, your tuition is at stake, literally these folks have your life in their hands. And so are you going to talk when all of that is at stake? Almost certainly not. And so many many kind of secrets wound up being kept inside of the family even at times when athletes’ own safety is at risk.
Sara Ganim: There are other less serious, but still significant cases out there like at Kansas state where this policy forbid members of the equestrian team from responding to media requests, when their university decided to cancel the sport and the athletic departmental players don’t take part in any interviews unless it’s been approved. And they went as far as saying, always speak positively about the program teammates and coaches. Frank, why is this one important to mention?
Frank LoMonte: Because again, when you’re talking about public university and a student athlete, this is a government agency. A government agency with a lot of power over people’s lives. And you couldn’t require a citizen to say nice things about the government in any other context, right? You can’t use governmental authority to compel people not to criticize the government, in fact that’s kind of the whole point of the First Amendment, that’s literally why it’s there. The First Amendment exists so that we get to make the government look bad. That is explicitly the purpose of it. And so the idea that somehow university has reputational interests or an interest in avoiding controversy that overrides individual people’s rights, that just fundamentally misconstrues how the First Amendment works. . And so when you’ve got an issue that is of larger public concern, let’s say it’s the cancellation of a sport’s program, the only way that those athletes can engage in public dialogue and maybe change the outcome of a decision that they don’t like is to be able to speak about it. If they can’t speak about it, then they can’t influence the decision, and if they can’t influence decision, then they’re powerless over their own futures.
Sara Ganim: You mentioned times where it’s like seemingly harmless pieces, player profiles that were written without the reporter, having access to the player who is actually being profiled.
Frank LoMonte: Yeah, in the land of the First Amendment, there’s a concept called tailoring, right? The idea is we allow the government to regulate speech in very narrowly tailored ways. So if you had a policy at the athletic department that said don’t show your playbook to other people, don’t give away internal team strategies, that’s the kind of policy that could hold up constitutionally. The government has an interest in safeguarding those secrets. But a policy that says don’t ever talk to anybody about anything is not a narrowly tailored policy. So the way that this policies are invariably written and the way that they’re enforced, gives the athletes the idea that there is never a time that they are free to speak about anything, even the most harmless of things, even grandma’s apple pie recipe. And so the idea that you have that level of control over an athlete is just unprecedented in any government interaction with its citizens. There is no class of citizens, not students, not employees, frankly not even prison inmates that has zero First Amendment protection.
Sara Ganim Narration: We’ve seen football coaches make blanket policies that any player in their first year can’t talk, no matter what. That’s true at the university of University of South Carolina, Colorado State University and the University of Alabama. In fact, Alabama’s legendary head coach Nick Saban explained this by saying that it prevents inexperienced players from making missteps, but what happens when something is going wrong? Some policies specifically address this. These are direct quotes from the policies that we obtained.
“At Iowa state, football players are told: “Do not take your complaints to the newspaper. The coaches’ office is the only place for these. Keep it in the family.”
Kent State’s Athlete Handbook says: “Don’t take your complaints to the media. The coaches’ office is the only place for these.”
Texas Tech tells football players: “Anything that happens with this team, anything within the program or locker room, stays with the football program and in the locker room.” And East Carolina University says: “If you do not have anything good to say, do not say anything at all.”
Then in all caps, the handbook says: “DO NOT COMPLAIN ABOUT THE COACHES, TEAMMATES OR THE UNIVERSITY.”
Now, you might be thinking, policies are one thing but i’m sure that in reality, journalists can get what they need. I’m sure they’re talking to athletes, as long as they ask and as long as they follow the rules. Well, we, at the Brechner Center, partnered with the largest association of sports reporters in the country, the Associated Press Sports Editors and we surveyed reporters asking for their experiences getting these kinds of interviews.
Of 32 responses, from various media organizations across the country, none of them said they are always free to speak to the college athletes they are covering without first getting clearance from the school. And only three reporters said they always get the interviews they need as long as they ask for them. When we asked if this diminished the quality of their reporting, more than 90 percent said that it had.
In at least two handbooks we found the rule seems to extend to reporters warning not just the athletes that they’ll be punished but threatening journalists, too, by stating that breaking the rules may be punished by a loss of credentials. Meaning, you can’t cover our sporting events anymore if you talk to an athlete without going through the proper channels. We found this to be the case at two schools. The University of Oregon and Rutgers. Yes, the same Rutgers where former basketball coach Mike Rice was fired after videos leaked of him kicking and taunting players. Important to note that the video was leaked by a former staffer not an athlete.
So, let’s say you’re a journalist covering the football team at the University of Oregon and you hear that the star player, who is already being investigated following a fight with his girlfriend, also got into some locker room fights with teammates. You want to talk to players and find out if this is true? but if you do that, if you do your due diligence, you could potentially lose your credentials? That seems really crazy, especially because, well, we know that happened in 2016. The University of Oregon actually did punish a student reporter, taking away his press credentials, when he interviewed teammates about violent encounters with one of the star players. The reporting won a National Investigative Reporting Award and you’d think the university would be proud of that. Actually, it reprimanded the reporter, and yanked the newspaper’s press credentials for an upcoming game. After an uproar, the university did an internal investigation and determined that it did nothing wrong, mostly because other universities have similar policies. Because, mom, everyone else is doing it…
Sara Ganim: Frank, has anyone ever challenged this?
Frank LoMonte: No, interestingly enough, neither the athletes nor any news organizations to our knowledge have formerly taken on one of these policies. It does happen in the workplace context, employees take on these policies fairly regularly and they always invariably win. But athletes haven’t seem fit to do it, and I honestly think that’s a combination of two things; first, nobody is that motivated to give an interview, that they want to spend two and half years in federal court adverse to their own institution, it’s just the incentive is not there to take it on. And the second thing is those people who do run afoul of the policy, anybody who gets caught going off script and going off message and giving an unapproved interview, probably just gets benched for a quarter or benched for a half of a game, and that’s not enough to cause somebody to get a lawyer, go to federal court. The kind of person that it’s going to take, to take one of these policies on is somebody that has nothing to lose, somebody that actually gets kicked out of school, loses their scholarship, at that point, that person will feel free to take it on. But until then, I think we’re stuck with it unless a news organization were to try.
Sara Ganim: So, even though it’s a blatant violation of the first amendment. Like obviously. There is no other way of changing it. If somebody doesn’t step forward and file a lawsuit,
Frank LoMonte: I think that’s right, because the incentive is certainly on the part of the athletic department to control to the max. They feel like they can get away with doing this because they’re kind of impervious to challenge. They’re holding all the cards in that relationship with the athlete, and they know, there’s decades of experience that tells them that they’re likely to get away with it. So it’s a little bit like speeding on a highway, they see everybody doing it, and they assume it’s fine, it’s not fine, it’s not legal at all, it’s just common.
Sara Ganim: I mean, I think I know the answer to this already, but, why do these schools have so much power, the power to blatantly violate the first amendment? And nobody wants to stand up to them. Two groups of people: athletes and journalists,they have a lot of power, right? They have a lot of influence in the world, but still these universities have scared them enough
Ramogi Huma: You know, my, my 2 cents is although many of these issues have been discussed over the years on the periphery, which is, I mean, this is really one of the reasons I was excited to come do an interview and to see what you all have, because you’d be surprised how much really people haven’t looked into it. You know, so what you’re doing, the research you’ve done is novel Frank’s analysis is novel. You know, we’ve all been discussing the power dynamic, and I think that’s why it’s been able to persist, you know, in terms of athletes, not to mention that athletes, many of them think they’re gonna go pro you know, the last thing they want to do is rock the boat. And plenty of coaches are quick to say, Hey, you know, play right. You know, I act right. Or else I’ll go tell these Scouts what a bad person you are, why they shouldn’t have you on their team.
Frank LoMonte:I think that the general public hasn’t really gotten to this realization yet, that they’re being denied information that they would otherwise be entitled to, and that they’d be interested in and that might be important if we could just loosen some of these gag restrictions.
Sara Ganim:I mean, that same public is up in arms though. And rightfully so when these major scandals are unearthed, right. You know, have been, have been taking place over decades, decades of abuses, of, of athletes at major universities yet, you know, it’s just like this barrier that no one, no one seems to be, want to be the one to, to stand up and change this awful precedent.
Ramogi Huma: I think there’s another dynamic here that we haven’t really talked about is the fact that college athletes don’t have representation. You know, if you look at the other sports there’s unions, who do you think would be following these lawsuits and holding there, these people that accountable when, when their, their players’ rights are violated
Frank LoMonte:I’m actually cautiously optimistic that we’re at a moment in the culture when it’s possible to contemplate that things might change. And I do think that’s largely a result of the police brutality debate we’re having in America, the larger racial justice debate we’re having in America, it is a horrible, horrible optic that the vast majority of college athletes are black and the vast majority of sports information people are white, and they’re telling them what they can and can’t say, particularly about social and political issues that in no way compromise the ability of the athletic program to do their job, it’s just a bad optic. It’s a bad look, and I just don’t think that that’s higher ed wants to be projecting out there in the 21st century.
Sara Ganim Narration: I think it’s important to say that in the last few weeks we have seen some universities take some steps to recognize that athletes, especially black athletes,needed to be able to use their voice and speak freely about racial inequities in their programs. Ramogi and I had a follow-up conversation about this after we taped our interview and I asked him, do you think things are really changing or will this be a fleeting moment in time, where athletes felt particularly empowered. His answer is that it’s unclear. What is clear is that these policies still exist.
They still unconstitutionally gag the rights of college athletes and so the prospect of being kicked off the team, losing a scholarship, altering the course of their lives will be something that they have to weigh before they decide to speak out, about race, about returning to games amidst a pandemic, about mistreatment of injuries, about abuse, about anything that comes up that you, or i, or anyone else in America has the unalienable right to talk about. Next Time..
Mike Robb: Oh, it’s terrifying.
Sara Ganim Narration: On ‘Why Dont We Know’
Mike Robb: You’re not thinking about your 18-year-old taking a poli sci class and they’re sitting right underneath an asbestos-coated ceiling. It’s just not on anyone’s radar
Sara Ganim Narration: A danger lingering from the mid-20th century that many American universities have failed to address.
Linda Reinstein: it is the perfect crime. I live in LA and you couldn’t write the script for asbestos.
Mike Robb: it’s a staggering amount, But people don’t know how much because nobody says how much. When you have billions of dollars available year after year why do you have asbestos in your buildings? It’s because you don’t give a shit.
Sara Ganim Narration:
This episode was written and produced by me, Sara Ganim.
The Associate Producer is Tori Whidden.
In addition, Virginia Hamrick filed public records requests for this episode.
This episode was edited by Amy Fu.
Music for this episode was composed By Daniel Townsend.
audio mixing was done by Richie Taver.
The Executive Producer is Frank LoMonte.
‘Why Don’t We Know’ Is a production Of The Brechner Center For Freedom of Information at The University Of Florida.
A special thanks to The Hearst Family Foundation for providing the grant money that supported this reporting.
For More Information About This Episode, Visit Www.Whydontweknow.Org