The Next Step For Elite Gymnasts Is To Form A Union

January 8, 2019

At the beginning of November, the USOC announced that it was taking the first step towards decertifying USA Gymnastics. This was a direct if belated response to the national governing body having spent two years repeatedly failing in virtually every facet related to the Larry Nassar sex abuse scandal. The former team doctor abused hundreds of young women, including some of the most recognizable names in the sport of gymnastics, before being exposed after decades of predation. Every revelation placed the organization’s failures in sharper relief, and by the time USOC took action USA Gymnastics was a badly damaged ship, listing in the waves.

The only surprising part of the USOC’s move was the lateness of its arrival. The announcement was welcomed by almost everyone who had followed the story closely, with the notable exception of those with job titles at USA Gymnastics. Surely, the thinking seemed to go, anything had to be better than the status quo.

That might well prove to be the case, as it’s too soon to tell where this all will go. At the moment, though, it’s still business as usual with USA Gymnastics. The organization has filed for Chapter 11 bankruptcy protection, a move that many observers view as a way of delaying discovery in the many lawsuits that have been filed against USAG by former athletes who had been abused by Nassar. The future is not bright, but in the present USA Gymnastics is still the national governing body of gymnastics, and still the ones hosting the competitions and training camps and disbursing the stipends and handing out the competitive opportunities. It’s by no means a certainty that they will be decertified.

It’s hard to view the USOC’s move against USAG with anything but skepticism given their own complicity in this mess. They’re being sued over Nassar’s sex abuse, too, and are involved in litigation related to abuse in other sports. The USOC is also responsible for some of USA Gymnastics’ most boneheaded decisions, including the hiring of Mary Bono, the former Republican congresswoman who was forced to step down due to her employment at a firm that had helped USA Gymnastics cover up Nassar’s absences after the first allegations were made against him in 2015. She also tweeted disparagingly about Nike in response to their ad campaign featuring Colin Kaepernick, which put her crossways with Simone Biles. Within five days of her hiring, Bono had resigned. This was seen as yet another USA Gymnastics misstep, and it was. But it was the USOC that had suggested Bono in the first place.

The recently released investigation of the USOC by the law firm Ropes & Gray paints a damning picture of the organization in general, and of how its top executives failed to act when notified about Nassar’s abuse in particular. Former USOC CEO Scott Blackmun even deleted a Nassar-related email that former USA Gymnastics president Steve Penny had sent him in one of the lazier attempts at destroying evidence in recent memory. This is the institution charged with righting the ship.

All of which is not to say that nothing will ever change or improve. It should, and there’s reason to hope that it will, but the entire solution must go beyond improving the flawed institutions we already have—though we should do that—and/or simply hoping that new institutions will do a better job. A new governing body, even one run by competent people, will be just as concerned with its legal and civil liability as its compromised predecessors. Even if the new organization performs significantly better on all fronts than the entity it replaced, it will remain susceptible to the same pressures that created the need for it in the first place.

What is needed beyond reform is a countervailing force—not just a new acronym on the old priorities, but an organization that addresses the needs of athletes and only those of athletes as its sole mission. We need a way for gymnasts to have true power instead of some alphabet-soup organization periodically “empowering” them to speak out. It’s of course good for the gymnasts to feel like they can speak up without fear of retaliation, but it’s not at all the same thing as those words leading to change.

So how can athletes create power that they themselves wield? Creating a union seems like a good place to start.

In the two years since the Indianapolis Star published its first article about Nassar many former gymnasts have spoken about the work they do. They’ve described training regimens defined by long hours, bad conditions, and bosses they absolutely hate and fear. Sounds like a job to me!

Simply working hard and being terrorized by an egomaniacal superior are not enough for a person to be considered an employee, though. And, in fact, the vast majority of gymnasts, male or female, would probably never be characterized as workers. Most gymnasts—well, their parents, really—would more accurately be classified as people paying a fee for a service. Gymnasts are taught the sport by coaches, in exchange for the cost of tuition. When they show up to a competition, for which they’ve paid entrance fees, the hall has been rented, the equipment transported and safely set up, and there are judges present who have been paid to evaluate their routines. Seats are set up so friends and family can cheer them on. These gymnasts, though they work hard at their sport, could not realistically be described as workers or considered as part of a potential bargaining unit.

None of which means that those young gymnasts somehow don’t need or deserve protection. They do, it’s just that a union wouldn’t be appropriate for them. For these athletes and their parents, availing themselves of top-down reform efforts such as the Protecting Young Victims from Sexual Abuse and SafeSport Authorization Act of 2017 and the U.S. Center for SafeSport are the best tools at their disposal, although the reforms taking place at the national governing body level may help them as well. That these reforms appear deeply flawed at best doesn’t change the fact that mechanically, this type of reform is what will address the needs of the vast majority of gymnasts.

A select group of gymnasts, though, are less like customers and more like workers. Much of their activity remains the same, as does their central relationship to the sport. They pay tuition to a gym so that they can train; they go to competitions and compete. But when these gymnasts reach a high enough level and are added to the national team, or are at least in contention for a spot, the economic relationship with the sport changes. At that point, they are adding surplus value to a corporation, in this case USA Gymnastics, which is a 501(c)3 non profit, that benefits from it. (There are unions at nonprofits.) Due to the popularity and success of its gymnasts, USA Gymnastics is able to drive ticket sales and sign sponsorship deals with major corporate brands. Or, anyway, they were able to do those things back when they had sponsors, before the Nassar scandal became front-page news. When American gymnasts’ win at the Olympics, high-level staffers at USA Gymnastics receive medal bonuses from the USOC. Gymnasts’ contributions to the corporation via their work and their winning far outweigh what they receive in terms of stipends and travel. The Olympic athletes that make a lot of money—people like Michael Phelps and Simone Biles—get it through endorsement contracts, not through the wages they’re paid for their athletic work. Those stipends are low enough that everyone who isn’t a megastar is just getting by.

And the gymnasts on the national team could hardly be said to do gymnastics just because it’s fun. There are concrete limits imposed on them by the federation. “When there is a class of gymnasts that are told for a period of time per year they were supposed to be at the Karolyi Ranch and train as part of a team, that seems to be clearly indicative of, first, a union based on the cohesiveness of the activity that they’re engaging in,” Marc Edelman, law professor at the Zicklin School of Business at Baruch College, told me. Last year, Edelman wrote a piece for Forbes arguing that the U.S. women’s national team should unionize.

“Second,” he went on, “if you look at the restraints that were imposed on these gymnasts by the Karolyi family, those are pretty comparable to the same type of restraints that an employer would put on an employer. If you talk about the limits of food that one could eat, or the requirement of a certain number of hours per day training, or the requirement to see a certain set of doctors, that is not what one would consider to be part of the recreational pursuit of a sport.” Instead, Edelman said, “that seems to meet the legal definition of control under the traditional test of labor unions.”

So let’s say the gymnasts (and their guardians) decide to form a union. We’ve already established who doesn’t belong in it—most of the gymnasts in the U.S. But who among this elite group of athletes should actually be included in the bargaining unit?

(For the purposes of this story, I’m only discussing the possible unionization of female gymnasts. Though there are good reasons to include male gymnasts in a union, and though they also deserve to have a seat at the table—the men comprise 50 percent of the gymnasts that the U.S. sends to world and Olympic competition—I’ve left them out of this hypothetical union mostly to keep things a bit simpler. The concerns of male gymnasts are also not quite the same as those of female gymnasts, and the guys also tend to be adults, which makes them less difficult to organize.)

In the narrowest view, only those on the junior and senior national team should be part of the bargaining unit. There are arguments for a broader class, but for the purposes of this story, that’s what I’m going to do. As gymnastics fans know, the size of those teams are hardly stable throughout the year—the top six finishers at nationals are guaranteed a spot on the team, but others can be added at training camps throughout the year depending on the needs of the team. And gymnasts who are not presently listed on the national team can still be invited to camps and considered for international competitions. If they’re selected for an assignment, they’re typically added to the national team roster, where they are subject to the same demands as all other team members.

Instability in the bargaining unit is a fact of life in the world of professional sports unions. “Every major league baseball team has several hundred players who are contractually under their control,” Edelman said. “Nevertheless, the MLBPA only represents the 40 players who are currently on the major league baseball team roster at any given [time]. If a player is added to the 40-man roster, they immediately become represented by a union.” When a player loses his spot on the 40-man, that union protection goes away, too.

Another factor affecting union stability is career length. Not only are female gymnasts young, but their careers are uniquely short—most move on from international elite gymnastics by the time they are ready to start college. That typically leaves around two years from the time they’re eligible to compete as seniors, at age 16, until they go off to university at 18.

While this is certainly a short period of time, it’s not that far off the career average for an NFL player, which is about three and a half years. “For every Tom Brady that’s in the league that’s been playing for more than a dozen years, there are three, four other guys whose average career is a year or less,” Edelman said. “The NFLPA continues to function in respect to players quickly coming in and coming out.”

Age is another factor for the union members of this prospective union. While most athletes are young, gymnasts are uniquely young—many, if not most, hit their athletic peaks in their late teens. The best ones in the U.S. are under the age of 18. This has been the story of women’s gymnastics since the mid 1970s, when Olga Korbut and Nadia Comaneci shot to superstardom. There is, again, a parallel elsewhere: Edelman noted that the Screen Actors Guild has underage members, and that the union has been able to protect those members’ rights.

I pointed out to Edelman that the majority of the SAG’s bargaining unit is not under the age of 18, which would be the case if female gymnasts were to form a union. He didn’t think this was an insurmountable obstacle. “There are endemic challenges related to the organization, voting, and engaging in union activities of those who may be younger and, at the time, somewhat less formally educated,” he allowed. “[But] the upside is it would allow for outside representation to truly protect these individuals in a manner that is currently not occurring.”

While some unions require a lot of hands-on participation from members, from meetings to voting on particular actions to negotiating with management, not all do. There are plenty of professional sports unions in which the athletes are not expected to be involved in the minutia of the union’s operation. Typically, it’s a bunch of lawyers, businessmen and former athletes—Aly Raisman, anyone?—who do the lion’s share of the work. “The reality is, if these gymnasts were permitted to form a union, most of the day-to-day would be handled by outside representatives with experience representing athletes,” Edelman said. “The fact that many of the gymnasts are under the age of 18 makes unionizing even more important.”

One of a union’s main responsibilities is negotiating fair pay for its members, but that might not be a particularly high priority when it comes to the the U.S. team’s female gymnasts. Most of the gymnasts who are on or in contention for the national team are planning to compete in college on scholarship, and current NCAA rules prevent them from accepting any compensation in the form of wages if they are to retain their eligibility.

This means that on the one side, you have a national governing body that really doesn’t want to part with its money; the NCAA, which is on the other side, also doesn’t want to part with its money. In the middle, you have a teenage gymnast who needs to take a gamble and figure out what’s more valuable—income in the form of wages or endorsements during her elite career, or the cost of a four-year scholarship.

2011 world champion Jordyn Wieber opted for the former, deciding to forfeit her eligibility during the run-up to the 2012 Olympics, where she was a favorite for the all-around gold. She ended up spending her time as a UCLA student acting as the team manager instead of competing; the best gymnast in the gym, who was also one of the best gymnasts in the world, was the woman filling water bottles and moving mats.

The choice that Wieber and other athletes are forced to make is a false one. It really shouldn’t be this way.

“There’s no scenario anywhere else where, just because you’re making money, it precludes you from being a college student and thus competing for your school,” Warren Zola, professor at Boston College and expert on sports law, told me. “John Mayer goes to the Berklee College of Music, he can get paid to write a soundtrack or play a show and still show up to class on Monday and be in the school band if he wants to. And no one says, ‘Gee, you’re getting paid. You’re not a real Berklee student.’”

And yet a union could be an effective tool for gymnasts even though the NCAA does not allow any sort of compensation to prospective student-athletes for their work. (The NCAA does allow for an athlete to be reimbursed for travel and other expenses related to training and competing. And Olympians can receive payment for medal-winning performances at the Games and still maintain their eligibility.)

“If a union secures pay for the gymnasts, a gymnast who is concerned about NCAA eligibility would not have to accept the money,” Edelman wrote in an email. He cited examples in sports like tennis and golf where athletes who wish to maintain their eligibility have turned down prize money. “Doing so, of course, would not interfere with their rights to enjoy other union benefits such as improved working conditions.”

This is a significant point, since a lot of the coverage of the Karolyi Ranch has focused on the substandard conditions there in terms of accommodations and food, areas in which a union could negotiate for certain minimum standards. John Geddert, of all people—he was the 2012 Olympic coach, was routinely cited for abusive coaching practices, and was close friends with Larry Nassar—complained in a since-deleted blog post about how the gymnasts had almost no time off from training during their preparation for the 2011 world championships. An athlete union rep could insist on participating in the scheduling of national team practices; that could even be part of a contract that’s negotiated between the athletes and the national governing body.

“Under federal labor law, when employees form a legally recognizable union, the employer group has a mandatory duty to bargain with the union over hours, wages, and working conditions,” Edelman said. “When we talk about working conditions for organized athletes, that would include things such as the number of hours per day that they’re required to work.”

The most serious issue facing a gymnasts’ union might not be the question of whether there’s a need for one, or how it would represent the interests of a young and ever-shifting membership. There’s an even more elemental one to consider, which hangs over every dispute between labor and management.

Ultimately, the most powerful weapon in any union’s arsenal is the strike—the withholding of labor until management meets the union’s demands. It’s hard to imagine that this would be a realistic path for young athletes in a demanding Olympic sport with few competitive opportunities. It’s nearly impossible to imagine gymnasts carrying out a strike, or even convincingly threatening one. The reasons why become apparent when you compare them to other, similarly-situated athletes.

In 2017, the U.S. women’s national hockey team threatened to boycott the world championships in order to get better compensation and more investment in their developmental programs. Before this action, the women were being paid just $1,000 a month for six months every Olympic cycle. They received nothing for the other three and a half years, even though they still had to train for all four years in order to maintain their skills and preparedness for competition. They were also treated differently than members of the men’s national team. This manifested in insultingly obvious ways—while the men were flown in business class, the women were put in the coach cabin.

The hockey’s team threatened boycott was hugely successful, in large part because of the extreme solidarity that was shown not just by members of the national team, but also further down the line. USA Hockey approached players who were not on the national team about competing at worlds, going all the way down to beer-league players. Every single last one of them refused, even though this would have been the only chance for many of them to compete at an elite level.

For the most part, though, the athletes involved in this action were adults, and all of them were involved in a team sport. A hockey player cannot play alone, but a gymnast can—and does— compete alone.

“As long as you have a few athletes here and there who are willing to cross the line then it becomes very difficult to organize,” Han Xiao, the chair of the USOC Athlete Advisory Council, told me. Xiao testified in front the senate subcommittee in July and was the only person present who attempted to identify the structural problems with the organization of Olympic sports and propose solutions and suggest ways to increase independent oversight of the USOC and member national governing bodies. “What we saw in women’s hockey was effective, in part, because they didn’t do it around the Olympics.”

I spoke to a parent of an elite gymnast—they didn’t want to use their name out of concern for their child’s athletic career—who pointed to this particular issue immediately. “Does the union really have bargaining power if the members won’t strike?” the parent asked.

“The problem with gymnastics,” the parent went on, “is that the spots are so slim, so far and few between, and so time-sensitive that a kid that’s been training since they’re essentially six, seven years old possibly is not going to strike and miss out on an assignment. A FIG [International Gymnastics Federation] event is going to go on whether the gymnasts in the United States are striking or not. They’re not going to miss a world competition in order to, you know, to get a national team training facility, as an example.

“If they miss an Olympics or something, that’s it. There’s not another one coming around the corner.”

The parent cited Simone Biles as being unique in her ability to flex her power in the sport and see results. Biles, since coming forward as a Nassar survivor, has been able to get USA Gymnastics to cease holding training camps at the Karolyi Ranch, the former site of the women’s national team training center, by speaking out about the trauma of training at the site of her abuse. She also played a key role in forcing the resignation of Mary Bono after just five days on the job. Bono had come under attack for having worked at a law firm that helped USA Gymnastics hide Nassar’s abuse in 2015, but also found herself in Biles’ crosshairs because of an anti-Nike and Kaepernick tweet.

“You saw with Simone speaking up that she individually has power,” the parent said. (That power and importance to USA Gymnastics of course didn’t afford her protection from Nassar’s abuse.) “I understand that it would be amazing if there were some way that collectively the other athletes have that kind of power, but I don’t believe they do.”

The expectation that Biles should speak out in order to affect needed change is unfair to the 21 year old. She’s still an active athlete in a demanding sport. Her primary responsibility should be training and competing, not leading USA Gymnastics out of the abyss.

While acknowledging that a strike aimed at the Olympics or even a less important competition like a World Cup is probably impossible, I asked if it would be possible to collectively sit out a national team training camp as an escalation tactic should the hypothetical union’s demands not be met. The parent seemed skeptical that even this would be feasible. “If you don’t go to the training camp, they just invite someone else. They don’t care. There are just too many kids that want that spot,” they explained. If you opt out of a training camp, you might not get invited to the selection camp where the international assignments are handed out.

One missed camp might not adversely impact the fortunes of a gymnast like Biles, who has no trouble scoring an invite to one. Neither would it be a significant issue for gymnasts who have won major world events. “The girls at the top, they don’t even quite understand how the other athletes are treated because they’re not treated that way,” the parent said.

This kind of thing happens in all workplaces, of course. Not every worker experiences the same treatment, and not every employee is aware of what happens to every other employee. Just after the editorial staff of New York magazine announced it had voted to join the NewsGuild, Jonathan Chait was moved to get on Twitter and let everyone know that he thought the magazine’s bosses were just fine, undermining his colleagues’ union drive. Beyond Chait being a dope who doesn’t even seem to understand how unions work, his tweet suggested that he, at least, enjoys star treatment at New York. In so doing, he pointed to a broader type of problem in organizing: People who enjoy good pay and security have a tendency to assume, or to want to believe, that that their colleagues do, too.

A big part of a union drive is educating coworkers (and others) about what’s going since they might not be aware. As noted in this piece, issues of pay disparity, especially along gender lines, came up repeatedly during Gawker’s unionization drive. (Deadspin was formerly part of Gawker and is now part of the Gizmodo Media Group Union.) Participating in a union drive allows you to tell your coworkers—or teammates—about the particular issues that you face. It’s also a chance to hear about the stuff everyone else is dealing with, so that the unit can put together a comprehensive list of demands that helps everyone.

Of course, this is much easier said than done. And in this case, the people who would be educating others and being educated themselves would primarily be parents, since the majority of athletes are underage. By the time their kids reach the elite level, those parents have sunk so much time and money into their kids’ careers that I imagine it would be difficult for them to speak up if they thought speaking up would jeopardize both their child’s hard work and their own investment. The parents are stakeholders in the athletic outcome just as surely as the athletes, coaches, and administrators are. There’s nothing easy about any of this.

“Even if you get to the point of organizing, then you have to get to the point of having an effective organization of athletes that actually has clear goals and has someone who is able to lead the movement and bargain for those goals and have a vision,” Xiao said. “That’s all probably a long way away.”

During the heyday of worker unionization in the U.S., wages for non-unionized employees were also higher. With the decline of labor power, the wages of non-unionized workers have fallen.

A gymnast’s union could have a similar effect on the non-unionized gymnastics population. If the gymnasts successfully organize to limit hours and improve training conditions and increase access to resources at the national team level, it could also set a new standard for the lower levels, from those right below the national team on down. After all, many gymnasts outside of the bargaining unit would be making use of the same facilities that the national team uses when/if a new center is built. The Karolyi Ranch didn’t just host the national team camps, after all—it hosted gymnasts for developmental camps and numerous other programs for young, pre-elite gymnasts.

Second, the fact of gymnasts organizing and gaining real power would be a potent symbol for younger gymnasts at lower levels. News media reports on gymnastics since the scandal first broke have focused on the “culture of abuse” and “culture of silence” that pervades the sport. While a union of elite gymnasts wouldn’t materially change what happens at the lower levels, it would create a generation of more outspoken and outwardly empowered role models for younger athletes. In that sense it would perhaps be a small step forward towards the cultural change called for by prominent survivors like Rachael Denhollander and Raisman.

Finally, the union could flex its muscle when it comes to how resources are allocated to the lower, developmental rungs of the sport. The women’s hockey team didn’t just organize for increasing their own pay and support—they won increased support for the lower levels of the women’s game, creating a healthy pipeline of talent flowing into the national team.

“You can’t support everybody, so where’s the line in every sport? Are you only supporting the Olympians and Paralympians?” Xiao asked. “There’s generally no investment in anybody that’s not really a medal contender right now or any programs that aren’t really contributing to medals in the short term. So that’s a really difficult line to draw, not just with unions, but with just funding allocation in general. How do you decide who is worth investing in?”

The union, as the voice of the athletes, wouldn’t necessarily have the definitive answer to this question. No one has that answer yet. But they could insist on having a say in how the funds are allocated.

Gymnastics has already witnessed the power of collective action. The “Survivor Army” has used its strength in numbers to force the public to pay attention to Nassar’s abuses and the people and institutions that enabled him. Their collective, sustained efforts have led to Senate hearings, the resignation of more than one USA Gymnastics CEO/boss and the entire USAG board of directors, the resignation of the head of the USOC, and the first move to decertify USAG as the official governing body of the sport. Those are just a few of their very real accomplishments.

But collective action isn’t just for the survivors and the gymnasts who have retired. It’s for all gymnasts, even the youngest ones. They shouldn’t have to wait until after they retire in order to have some say in their careers.

Source: Read Full Article