01x02 - Misclassified

[bunniefuu]

I always joke that I got into Stanford

because of a 4.0/1600.

Not a GPA and an SAT score.

4.0 yards per carry.

1600 receiving yards.

I was a High School All-American

football player.

It gave me a tremendous opportunity

to go to this extraordinary school.

I feel like I owe so much to sports.

Columbus gets to it,

but not quite in time.

Booker with a nice catch.

Cory Booker, red shirt junior out

of Harrington Park, New Jersey.

But at Stanford,

I became very disillusioned.

I was watching

this multi-billion dollar industry,

about a 15 billion dollar

American industry,

creating millionaires

all over the place.

Business people, marketers,

coaches, lots of people getting rich,

but the people on the field

You have these luxury boxes where

the privileged and wealthy

are looking down at folks

on the field,

who, through their artistry and hard

work, are creating the wealth,

but they're sharing in none of it.

Going through this and seeing

these trophies,

you really forget about the journey

and all that you did to get

to that full scholarship.

This is when I was in eighth grade.

A lot of my high school,

I was in Muncie Central in Indiana.

Number 15, Kyle Allen.

There was 15 000 people in those

stands at a high school game.

My senior year,

Sacramento High School.

We were the first team In Sacramento

High School history to go to state.

To make it out of Sacramento playing

basketball was no small task.

It was like we were

the chosen few.

I was offered a full ride scholarship

to play at Hawaii Pacific.

This is my award letter.

400 dollars for books.

950 for room and board.

The total award was 25 485 dollars.

This is fine print.

This is a contract.

They're not just giving you money

because they like you so much.

Kyle Allen!

The very first practice you realize

it's no longer fun, it's a job.

5:24 right now.

Workout starts at 6:00.

Practice starts at 7:30.

The bus leaves at seven o'clock.

Practice ends at 10:30,

you have to get bused over

very quickly to make the class.

I just made It back from practice

and I don't typically have time to

actually sit down and get treatment.

So I just grab the bag of ice

and I'm game ready when I leave class.

From 10:50 until around two o'clock

you're in class.

- I don't want to be here right now.

- Is Willy in there?

No, he said he's not coming to class.

That guy's being studious,

look at him.

After class, you had either film,

weights,

or you would have

an evening practice or a game.

Essentially, seven o'clock

in the morning

to around seven o'clock at night

you are on company time.

I love Michigan sports. It used to ruin

my week if Michigan lost.

But, for Michigan,

Ohio State, Alabama,

even teams that are nationally

recognized,

you might get three kids drafted.

That's still 30 other kids who

are graduating from that class.

And what I care about

is what happens to those kids.

Do they go on to be lawyers

and doctors and accountants?

They are being pushed through

the institution

with shallow and empty educations,

in order to make them available for

the next football or basketball game.

I see the commercials where they say

"most NCAA players won't make it

to the NBA".

"You should get your education."

There are over 360 000

NCAA student-athletes.

And just about all of us will be going

pro in something other than sports.

That sounds really good,

but at the individual schools,

that's not what's being preached.

I remember finals week,

we had games all week.

So it's like: "Yeah, do good on your

finals. You have a game at 7:00."

To their knowledge,

you're there to play football.

You're not on scholarship

for school.

And it sounds crazy when

a student-athlete says that,

but those are the things coaches

tell them every day.

And that's why graduation rates, as

much as the NCAA might want to brag,

when you start dis-aggregating

graduation rates,

Black men in revenue generating sports,

it's down to about 55%.

The misconception is that the only

school that that goes down on

is the Dukes, the Illinois,

the North Carolina,

the big time schools.

Whether you're playing division two

basketball or D1,

this is the life that you're living.

Coaches have extraordinary

control over the athletes' lives,

and they also have extraordinary

pressure to get the most

out of those athletes,

because they're getting paid

millions of dollars to succeed.

College coaches rank as the

highest paid public employees.

In fact, they do so in 41

out of 50 states.

College athletes are employees

in virtually every sense of the word,

other than by name.

By name, college athletes

are referred to as student-athletes,

which is a legal fiction, essentially,

that was created by Walter Byers,

the former Executive Director

of the NCAA,

and the NCAA's lawyers

back in the fifties,

to avoid

worker's compensation claims.

In April, 1950, while indulging

in spring football practice,

Earnest Nemeth suffered an injury

to his back.

At the time, he was receiving 50 dollars

per month from the University.

Nemeth maintains that he was

employed to play football

at the University, and that his injury

arose out of that employment.

One witness said: "If you worked hard

in football you got a meal ticket."

As the decision pointed out,

if he was off the football team,

the benefits would stop accruing.

And so, the Colorado Supreme Court

said, "this is an employee".

The NCAA, of course, having lawyers

of their own, read this and said,

"Aha, so here's what

we're going to do".

"Your scholarship, of course, may

be conditioned being a member"

"of good standing on the football team,

but we won't ever pay you"

"in a way that's directly connected

to being on the football team."

And thus, the NCAA came up

with the concept, or excuse,

depending on your point of view,

of "student-athlete".

And, that term has become a shield

for the NCAA

over the past 60 or more years,

to prevent athletes from seeking

benefits as employees.

It's a way to misclassify workers

as student-athletes,

as if they were not really just there

to play ball

so that somebody

is making money off them.

On one side of the line,

where you are an employee,

there are sets of obligations

by the employer in terms of benefits.

On the other side of the line,

there are no rules.

I try to avoid using the term

student-athlete as much as possible,

because of its historical fabrication

to avoid paying players,

workers' compensation claims,

and providing them with other benefits.

I think that this is patently

exploitative, I really do.

And especially on folks that gave up

their body

to make those people

millions of dollars.

Traumatic brain injury, blowing out

a knee, hurting a spine.

The injury rate in Division One

athletes across all sports

is 66% suffer a major injury,

50% go on to have chronic.

And now, 20 years later, they're

having to go in their pocket to pay

for all these medical expenses.

There's something wrong with that.

We have to acknowledge that athletes,

yes, receive a scholarship,

but that scholarship is very tenuous.

There's a variety of creative ways that

coaches use to try to get those athletes

to quit or transfer or otherwise

take back that scholarship

so they can allocate it to someone

else that's going to serve

the athletic interests of the coach

and the university.

Coaches are effectively making

employment decisions.

My second year, I started

every game and I played,

I averaged 27 minutes a game.

I was one of the leaders

of the team.

But we were losing a lot of games.

You would have team meetings, they

would legitimately ask our opinion.

I would question the coach.

"This isn't working, that isn't

working", things of that nature.

I was called into a room

with all the coaches.

At the time, I may have had a 2.4 GPA.

If you have a 2.0 GPA average,

that means you're eligible to play.

The semester was over

in about three weeks.

It was, "If you don't have a 3.2 GPA

by the end of semester,"

"you lose your tuition".

They knew I wasn't going

to have that.

At the end of my sophomore year,

my scholarship was plucked.

I didn't commit a crime,

I didn't break a team rule.

It was literally "we don't really

want you here anymore".

It actually wasn't until I left

the NCAA

that I looked at Walter Byers' memoir

called Unsportsmanlike Conduct,

in which he talked about how he felt

that college sports represented

what he called

the "plantation mentality".

The management of intercollegiate

athletics stayed at a place committed

to an outmoded code of amateurism.

I attribute that to, quite frankly,

the Neo-plantation mentality

that existed on the campuses

of our country

and in the conference offices.

And in the NCAA.

It was telling to me how the executive

that essentially designed the modern

system,

came to this viewpoint

after his retirement.

We crafted the term "student-athlete"

and soon it was embedded

in all NCAA rules and interpretations

as a mandated substitute for such

words as players and athletes.

Wait, can I just take a break

and say something?

This is something that we see

in all companies that misclassify

their workers,

they specifically use language

that's different from traditional

language that you use

with regards to employees

to make it sound like they're

talking about something different.

Our proposal is essentially

what we call

an independent contractor plus model,

gig worker plus model.

Uber says that its drivers aren't

its employees

because they do something that's

outside of their typical business.

Misclassification is classifying someone

as something other than an employee

when, in fact, they are an employee.

This is a distinction that has to do

with how much an employer

has to actually pay an employee.

The minimum wage does not apply

to Amazon flex workers

who deliver packages using their own

cars, because they are contractors.

Well, you have misclassification

going on all over the place

and it's unfair to competitors

who are playing by the rules.

This has been a big part of what

I've been doing through my career.

Uber and Lyft and all of these

gig economy companies,

claim that all of those employment

laws that we've had on the books

for decades to protect workers,

just somehow don't apply to them.

We have fought against companies

in so many different industries,

that have made use of this scheme

to try to offload

all of their employment obligations.

Call center companies,

delivery companies, strip clubs.

There's a whole gamut of companies

that classify their janitors

as independent contractors.

There are valid use cases for being

an independent contractor.

If I am a particular kind of repairman,

or provide a particular kind of service

for a corporation that's only used

an hour a year,

there's no reason for corporations

to have that person on staff.

The problem is that, over the years,

companies that have sought

to exploit this situation, have pushed

the envelope further and further.

This is one of the central issues for

these online gig economy platforms.

They do not want their workers

to be considered employees.

The story of misclassification goes

back basically to the moment

when classification began to matter,

to the 1930s.

After many requests on my part,

the Congress passed

a Fair Labor Standards Act.

There were some glimmers of hope

in the law.

What we call the Wages and Hours Bill.

That act sets a floor below wages,

and a ceiling over the hours of labor.

Laws passed that gave basic

protections to workers.

The right to a minimum wage,

the right to be paid over time.

The right to organize.

You get certain kinds of contributions

made in your behalf

to social security, to unemployment.

And over the years, more and more

employment protections

were layered on top of those.

But it wasn't designed in a way

that said: "How do I cover everyone?"

I grew up in the rural South, in a small

town in Southwest Mississippi.

And my dad was born in 1938,

which was when the New Deal

was in full swing.

And he, and just about everybody

he knew,

they were all left out of the New Deal.

A lot of this seeps into legacies

of racism in our country,

when our Social Security laws

were exempting

domestics and agricultural workers,

because those were the professions

African-Americans were more likely

to be in.

And so, when employers began to

realize they could make more money

by tapping into these workforces

that could not defend themselves,

either through institutions or laws,

they could make more money,

well, that's what they did.

The first move is replacing full-time

workers with part-time workers.

And the next move is subcontracting

those part-time workers to temps.

And the next move is, getting rid

of the temp agency entirely

and just hiring ad hoc,

independent contractors.

And once I lost my scholarship,

it was like, well, you worked

your whole life for this moment.

And just, you walk in the room,

"no, got to go".

There was no graduation because

I couldn't, they took my scholarship.

I didn't have any job skills.

I had my first daughter, Zoe,

and we needed some baby food,

and we were trying to get

an apartment.

We were living with my parents

at that time.

I couldn't get a job anywhere.

So you do what you have to do,

which was get into the gig economy.

It was a hard pill to swallow,

my first ride,

because it was a realization for me,

that all the work I put in,

it came to this.

When it first was rolling out,

the gig economy was looked at as,

for younger people, like freedom.

Opportunity is everything.

They packaged it in a way

like you're an entrepreneur.

And so this is the appeal

of the gig economy,

that it's possible to be your own boss.

I absolutely looked at it

as I was starting my own business.

You have to wake up, crack of dawn,

five o'clock in the morning.

Hurry up, feed your kid, baby.

Every minute, every second, and every

hour is money you're not making.

It's almost like a video game.

It tells you:

"Oh, it's hot in this area."

We have a ride. Accept that.

A mile and a half away.

It tells you where to go.

Grubhub order for Audrey.

Let's go deliver this Grubhub.

You guys know that I don't always

work 12 hours a day,

but I'm going to be working 12 hours

a day, because I want to hit this quest.

These apps keep data on how many

assignments do they accept,

how prompt are they accepting them,

how do customers rate them.

And from all of this data that's

being collected, determines

whether they get to keep working

or what kind of assignments they get.

They control you, but you're free.

So, yeah, you're creating your own

hours, but you have no life.

What's misleading is that you can

actually have a benefit of flexibility

in an exploitative situation.

If you have no control,

and you're working at the direction

of the company,

you actually don't have flexibility.

We are pushed to drive

70 to 80 hours.

I don't see where the flexibility is

when you drive,

or have to work 80 hours a week.

These folks who are doing these

gig jobs are getting hurt,

especially those that are doing

them full-time.

If you're working all day driving,

you are clearly not a gig worker.

There was no base pay.

The money I made driving

and the money I spent,

it probably was relatively the same.

I had clients who drove 70 hours

or more per week,

and they were just barely getting by.

Six hours we're at 71 dollars,

not that great.

At the end of the day, I did the math

and I was losing money.

I made more money staying home.

There should be a minimum wage.

I think it's criminal that the worker

can't make 5 dollars base.

I gained a lot of weight driving Lyft

because you're in the car all day.

If you're trying to maximize time,

you're going to do whatever it takes.

Fast food, fast food, energy drink,

energy drink, energy drink.

I went through depression, anxiety.

There's no time to pull over and get

sleep, you're trying to make money.

You're holding up this billion dollar

company,

but you don't get any of the perks

of that.

Without these drivers,

you have no business.

Without these players,

you have no business.

Companies will get away

with this if they can,

because they save massively

when they don't have to worry

about employment protections

for their workers.

An ex-Uber executive estimated that

Uber would have to pay 20% more

if they were to convert all of their

independent contractors to employees.

Misclassification games matter a lot

because if Company A follows

the rules and pays their employees,

and pays all their taxes

and pays all their benefits,

and they have to compete

with Company B that doesn't,

Company B can offer their product

at a lower price

and eventually drive Company A

out of business.

This is something that's happened

again and again, and again and again.

Right now, there's a lot of attention

on companies like Uber,

Lyft and Door Dash

and gig economy companies.

But the real danger is that it's just

the tip of the iceberg.

Only 1% of American workers make

money through these digital platforms,

but about 10% make their living

through independent contracting,

on a platform or not.

And about 40% of workers now

supplement their income

through independent contracting

or other kinds of contingent work.

A lot of my peers are in the gig economy

because we were all in the same boat.

You know, if you didn't make it

overseas or in the pros,

you're in my same boat,

we're all in the same boat.

You get out the last game of the year,

you have your team banquet,

and from that moment,

you're on your own.

Gig economy and student-athlete

were both created

to slight the worker.

You get a full ride scholarship,

or you get to pick your hours.

It's an illusion of freedom,

but in reality,

you are still on a plantation.

So, we have this entire portion of the

workforce that is being stripped

of all of their rights

under our basic employment laws.

I think, it's further embedding

a segregation in our workforce

as to who has protections

and who doesn't.

In men's basketball,

and in football,

a majority of the participants

at the highest levels are Black men.

But they only represent 2.4%

of the undergraduate population.

For all of these organizations, this

is their central way to build wealth.

And the people who are actually doing

the work that these companies do

are struggling,

They're fighting for basic protections,

for safety, for a minimum wage.

I don't think that a driver

or a student-athlete is asking

to become a millionaire.

But, if we're building your company,

and you're now

a publicly traded company,

and you just made hundreds

of millions of dollars overnight,

but the driver hasn't seen their kids

all weekend,

I think that you can see

that there's an issue there.

We are the company.

We are in a moment in history

right now where the NCAA is facing

a threat to their financial well-being.

And it could upend the way that

the monopoly that they have works.

Tonight, a big win for college athletes.

In a unanimous decision, the Supreme

Court rule the NCAA' strict limits

on benefits to student-athletes

violates federal law.

To pay no salaries to the workers

who are making the schools

billions of dollars, on the theory

that consumers want the schools

to pay their workers nothing,

that just seems entirely circular

and even somewhat disturbing.

What I'm seeing is the NCAA

being forced

to make small incremental changes.

College athletes have a new way

to make money.

They can't get paid to play,

but they can sign deals to earn

an income from their personal brand.

These are important economic rights

for the athletes,

and they should have been afforded

to them years ago.

However, there are many more

remaining issues

in the college sports industry

that have to be addressed.

We need to empower

those college athletes,

give them a set of basic rights and

privileges that they've earned.

Nobody in America should tolerate it,

especially us as fans.

To be silent as we witness this

is unacceptable.

People love to focus on whether

the athletes should be paid,

but these issues in college sports

extend far beyond

just whether they should receive

a fair wage.

And they include basic protections,

and things like health and safety,

meaningful education,

and graduation attainment.

Remember, the problem

we started with

was precisely that the money that's

being generated puts pressure on them

to not be real students.

It seems to me,

a really shallow solution

that what we should do is throw

a few more bucks their way,

skim a little off the top,

and make ourselves feel better.

It still means that you're going

to graduate

some huge swath of young Black men

without the education you promised.

I should have graduated in 2012.

I didn't graduate until 2018.

So, I had to start from ground zero.

I wanted to get into education.

This school, called Success Academy,

had a job opening

for an instructional aid.

It was a relief,

a great sense of relief,

from a gig job to a job

that gave me health benefits

and a say in a union.

I got an opportunity to coach Junior

Varsity basketball at the time.

I understand that they're going to have

a dream of playing in college,

getting a full ride scholarship.

And I don't want to detour

anyone's dream,

but I wish someone

would have told me the truth.

What do you think it means

to be American?

Don't you think it should come with

certain worker protections,

certain basic economic rights?

Economic, not just security,

but a sense of purpose.

I can climb this ladder

of the American dream.