Dartmouth's Basketball Team Embarrasses This Alum, But Not as Much as the NLRB Does

The men’s basketball team at Curmie’s undergrad alma mater, Dartmouth College, is an embarrassment.  No, not because they’re terrible, although they are: they have secured last place, alone, in the not-exactly-elite (in basketball terms) Ivy League.  They didn’t win a road game all year.  As of this writing, they’re 337^th (of 362) in the NET and 339^th on KenPom.  They haven’t had a winning record in 15 years, and currently sport the longest active streak (dating back to 1959) of not participating in the NCAA tournament.  They weren’t very good back when Curmie was a student there; they’re worse now.

But “disappointing” isn’t the same as “embarrassing.”  Not being very good basketball players is one thing; being narcissistic little assholes is something else again.  The reason the Big Green’s hoopsters are in the news, alas, falls into the latter category.  The players voted today (as I write this on March 5) to unionize (!), thanks to a heightened sense of self-importance by some rather mediocre athletes and a remarkably inane decision by the NLRB’s Regional Director, declaring them “employees.”  All 15 players signed the initial petition to join Local 560 of the Service Employees International Union, and 13 of them voted to unionize.

The Regional Director in question is Laura A. Sacks of the Boston office.  (Curmie believes people who do remarkably stupid things in their professional capacities shouldn’t be able to hide behind an important-sounding title.  Walking lawyer jokes like Jake Krupski ought to be similarly disgraced.)  The decision itself is inane on its face, but the rationale is even worse.

Here’s the decision; let’s look at a couple of key points.  First off, there is no argument with the college’s position that financial aid is offered exclusively on the basis of financial need; indeed, four players on the team receive none, whereas one gets a full ride.  Athletes don’t get special housing or other such perks.  Again, no one claims otherwise.  A fall term message to players “encouraged” them not to schedule courses during potential practice times, particularly between 2:00 and 5:00 in the afternoon. 

Conversely, that message told players they should “[F]eel free to register for courses in the following time slots: 8S/8L, 9S/9L, 10, 10A, 11, 12.”  Here’s where Curmie’s experience becomes relevant, because he knows what that means.  About 90% of all the courses I took as an undergrad were in one of those time slots.  Afternoons, certainly after 2:00, were almost always free.  One doubts that much has changed, even given the considerable interim.

Remember, too, that since Dartmouth is on a quarter system, students take only three courses at a time, so there’s less likelihood of scheduling conflicts at all; unless a particular course necessary for a player’s degree plan was offered only in the afternoon and only during basketball season, problems are rare if not altogether absent.  It’s also unclear why the team couldn’t practice in the evening, as there are multiple places on campus with basketball courts, and much of “practice” is film study or time in the weight room.

Also worthy of notice is the fact that NCAA and Ivy League regulations prohibit teams from requiring too much practice time: “In-season, student-athletes may participate in a maximum of four hours of CARA [countable athletically related activity] daily and a maximum of twenty hours of CARA weekly….  When a sport is not in-season, student-athletes may participate in a maximum of six hours of CARA each week.”

Yet, curiously, Sacks and her minions based part of the decision on the bizarre belief that athletes should be treated differently because the demands on their time exceed those required of participants in, for example, music, theatre, or journalism.  In a word, BULLSHIT.  First off, those activities are year-round; there’s no “off season,” and certainly no time cap.  Curmie was required to spend more than four hours a day and more than 20 hours a week not infrequently (especially but not exclusively during tech weeks) when he was in school, and he's certainly expected that kind of commitment from students throughout his career as a director and technical director in college and university settings. 

The other variation on this theme was that Curmie realized early on that if he was going to be an active member of the debate team, he was going to have to spend a lot more than 20 hours a week.  He opted instead for doing research to help the team when he could, administering one of the divisions of the high school invitational tournament hosted by the Forensic Union, and occasionally brainstorming with more active team members.  But those active debaters spent dozens of hours a week working for the team.  Same with the editors (at least) of the college newspaper, the directorate of the radio station… the list goes on and on. 

It’s also frankly nuts to claim that the Ivy League is taking students out of classes willy-nilly.  Virtually all league games are played on Friday night or Saturday.  Wanna guess, Gentle Reader, how many road games Dartmouth will play this year on a Monday through Thursday while classes are in session?  The answer is… wait for it… one.  Yes, one.  Another came between the end of classes and the end of finals.  Yet somehow, we get an official NLRB ruling with nonsense like “if, for example, the team is traveling on a Monday…”  Is Sacks incapable of looking at a schedule?  Furthermore, there was no rebuttal to the coach’s testimony that players sometimes missed road trips, with his blessing, because of class responsibilities.  In the Ivy League, education matters more than sports.  It really does.

So the whole “taking them out of classes” business is nonsense.  Moving on.  OK, get this: Cade Haskins, one of the students who keeps getting quoted, says that although the college makes it clear that “it is understood by both the faculty and coaching staff that class attendance takes precedence over participation in athletics,” he often prioritized basketball.  The fact that he can’t abide by the rules is an argument in his favor?

The precedent for this action is a decision a few years back when the Northwestern football team successfully convinced the NLRB that they were employees, but because they compete in a league that includes state universities (Dartmouth doesn’t), federal law apparently makes it impossible for the NLRB to make a ruling against the university in this instance.  Of course, unlike Dartmouth or indeed any other Ivy League school, Northwestern does give athletic scholarships, so, arguably, players are indeed employees, doing a job in exchange for financial considerations.  Still, it’s ironic that it would be Northwestern, a school far more noted for its academics than its athletics, that would be the target for such a unionization effort.

There are more ironies at play, too.  It would be impossible to name an athletic conference that cares more about the importance of education relative to sports than the Ivy League does, and there are few teams in any sport in the Ivy League more inept than Dartmouth men’s basketball… well, with the possible exception of Dartmouth women’s basketball.  If these folks are “employees,” Curmie would hate to see the amateurs.

Oh, but alumni contribute to the college because of the basketball team!  (Seriously, that’s an argument!)  Luckily, Curmie had put down his mug before reading that part, or coffee would’ve come out his nose.  There’s an alumni group, you see, Gentle Reader, that contributed over $300,000 to improve the basketball facilities!  Curmie got a missive from the alumni fund the other day.  That $300k for basketball would amount to about 7/10 of 1% of the unrestricted giving to the college last year (that doesn’t count the tens of millions of dollars designated for other specific uses.) 

It goes without saying that the basketball team at Dartmouth loses a lot more money than it brings in.  Don’t expect to see games televised except on ESPN+, and whereas Curmie’s other American school (his MA is from a British university), the University of Kansas, has sold out 16,300 seat Allen Field House every game for the last 22 years, Dartmouth can’t fill 2100 seat Edward Leede Arena even half full for Senior Night. 

The fact that according to the NLRB decision, “[N]o current members of Dartmouth’s men’s basketball team participate in NIL activities” sort of tells it all.  They’re eligible to do so, but local businesses don’t care enough to pay them as spokesmen.  Why?  Because they aren’t going to attract positive attention.  Curiously enough, the “whiny loser” image isn’t one that advertisers choose to foreground.  They’ll do their own ads or hire actors who know how to read a line. 

But if NIL threatens merely the idea of collegiate sports as we know them (see Curmie’s commentary here, here, and here, for example), the prospect of having to remunerate student-athletes will—nay, should—spell the end of intercollegiate sports altogether.  Many colleges are considering cutbacks to athletic programs as it is.  Curmie wrote last year that another Ivy League school, Brown, “had to cut some varsity sports a couple of years ago: losing money on athletics was one thing; losing that much money was untenable.”  

Whereas part of Curmie says “Good!”, the fact is that cheering on the home team is, or should be, very much a part of student life.  Curmie saw dozens of athletic events—football, baseball, basketball, hockey, lacrosse, ski jumping—as a student and doesn’t want future generations of students to be denied that opportunity. 

But if pampering a cohort of mediocre narcissists will cost even more time and/or money than it already does, the tipping point draws nearer.  There are some outstanding colleges and universities that don’t have athletics teams at all, or who play only in Division III or the NAIA: Brandeis, CalTech, MIT, NYU, and the University of Chicago come to mind.  Brooklyn’s St. Francis College recently eliminated all its Division I athletics programs, citing finances.  Indeed, only a handful of athletic departments break even; most lose millions of dollars a year, the shortfall made up by increased tuition and fees borne by other students, a goodly number of whom couldn’t care less about whether the basketball team is any good.

It's also probably worth mentioning that the two players quoted in the Politico article linked above are, predictably, not among the best players of even the remarkably unsuccessful team on which they play.  They’ve totaled 153 points and 50 rebounds in 26 games (let me save you the math, Gentle Reader: that’s less than 6 PPG and 2 RPG between them); both have more turnovers than assists.  They… erm… have little hope of a career in professional basketball.  Yet they seem to be at the center of the self-glorification.  Figures.

To be fair, there will be appeals after appeals, and it’s unlikely that college officials will have to negotiate for the services of hoopsters in the near future.  That doesn’t make the initial Regional NLRB ruling any less ludicrous.  Ultimately, the argument comes down to this: are athletes are treated significantly differently from participants in other extra-curricular (or co-curricular) activities?  If the answer is no, then there’s no case.  If it’s yes, then the rationale is that because jocks have been coddled in the past, they should be even more coddled in the future.  Color me unimpressed.

Curmie is loath to quote Donald Trump with anything even bordering on approbation, but on this one, he’s got it right.  If these guys want to be considered employees, the correct response is “You’re fired.”  Laura Sacks ought to hear those words as well.

The Nirvana Baby Still Chases the Dollar

Is it just Curmie, or does it seem to you, Gentle Reader, that there’s some kind of rule that to truly reach the heights of rock and roll immortality, you’ve got to release at least one controversial album cover? 

There was The Who’s “Who’s Next,” featuring an image which seemed to suggest the band-mates had just urinated against a concrete piling.  The Rolling Stones’ “Sticky Fingers” showed a crotch shot of a man in tight jeans, complete with a little bulge suggesting an erection and, in the initial release, a working zipper that revealed underwear-like fabric underneath.  Supergroup Blind Faith stayed together for only a single eponymous album, which features a topless pubescent girl on the cover.  

Led Zeppelin’s cover art for “Houses of the Holy” shows naked children climbing a hillside of basalt rocks.  (A post about Facebook’s censorship of this image a couple of years ago—a decision they quickly reversed after public uproar—came around on my feed just last week.)  Even the good-guy Beatles’ “Yesterday and Today” shows the Fab Four posing with slabs of meat and broken doll parts (not to mention the photo of fully nude John and Yoko on the cover of their “Two Virgins.”)

The album cover in question.

Nirvana wasn’t yet at the summit when they released “Nevermind” in 1991.  (Curmie may not include them in the pantheon now, but that’s only because he never really got into the grunge sound.)  The record is significant in numerous ways.  It was their first with drummer Dave Grohl, subsequently the driving force of the Foo Fighters.  It featured at least two songs, “Smells Like Teen Spirit” and “Lithium,” which are legitimately regarded as classics (whether or not an individual listener likes them).  And there was that album cover.

After attempts to find a photo that was neither too graphic nor subject to a steep royalty the producers didn’t want to pay, the band hired a photographer and sent him out to local swimming pools.  The photographer had a friend whom he knew had a baby boy. According to the boy’s father, “[He] calls us up and was like, ‘Hey Rick, wanna make 200 bucks and throw your kid in the drink?’  I was like, 'What’s up?' And he’s like, ‘Well, I’m shooting kids all this week, why don’t you meet me at the Rose Bowl, throw your kid in the drink?’”

And so was born the now famous shot of Spencer Elden, then aged four months, in the water.  Elden is naked, and his penis is visible.  Add a little computer magic, and the shot now shows the baby apparently swimming after a dollar bill with a fishhook attached; fishing line leads out of frame to the top of the picture.  The symbolism isn’t hard to comprehend.

Elden has become a minor celebrity in the ensuing 30 years.  He reportedly has “Nevermind” tattooed on his chest, has developed a cottage industry signing copies of the record, and has posed for underwater photos on several anniversaries of the album’s release.  All involved swim trunks, although he told the New York Post that he wanted to do the 25^th anniversary shot naked.

A few examples of how assiduously
Mr. Elden has avoided the horrors of
his infancy.

Needless to say, Elden has been an active participant in this process.  Ah, but now, at age 30, he’s suing the band members and anyone else he can think of for “extreme and permanent emotional distress with physical manifestations,” plus loss of education, wages, and “enjoyment of life.” He claims his parents never signed a release for the photo, and accuses virtually anyone he could think of—the band, the producers, the record company, and everyone who ever bought a copy of the record—of dealing in child pornography. 

OK, I made up that last part.  But let’s look at those arguments point by point.

“Extreme and permanent emotional distress.”  This is the guy who pronounced his notoriety as “kinda cool,” and who would be unknown if he hadn’t decided to publicize his own identity as the “Nirvana baby.”

“Physical manifestations.”  Name them.  Next.

“Loss of education.”  He is now a student at the Art Center School of Design in Pasadena; it’s unclear whether he is a grad student or an undergrad.  What is clear is that just tuition (not counting incidentals like food and lodging) there is at least $47,000 a year for undergrads, and more for grad students.  Somehow, the loss of education argument seems a little strained.

Wages:  How does that work?  Is he truly arguing that someone wouldn’t hire him because of something that occurred when he was four months old?  He’s worth a half a million dollars, by the way.  Curmie has a fair number of 30-year-old former students, college grads (and good ones) who would be willing to undergo such financial suffering.

“Enjoyment of life.”  Apparently exploiting one’s own purely accidental celebrity status just isn’t as much fun as it used to be.

Parents never signed release: assuming this to be true, then the time to deal with this was 30 years ago, and the people to do it were his parents.  But to imagine that a professional photographer and an established record label wouldn’t have the necessary paperwork in hand before proceeding with the cover design rather strains credulity.

Child pornography.  Two responses. 

Response #1: Bullshit.  Shyster lawyer Maggie Mabie, Elden’s mouthpiece, argues that “The focal point of the image is the minor’s genitalia.”  This statement can have two equally possible explanations: 1). Mabie is lying.  2).  She’s really, really creepy.  Curmie must have seen that image a dozen times before even noticing the boy’s penis.  The focal point, of course, is what appears to be the stretch towards the dollar bill.  As even a relatively dim bulb like Chris Cuomo points out,

I don’t ever remember anybody ever writing or anything being out there in society about this image as a sexualized or pornographic image.  I always thought that it was a suggestion of how right out of the womb, people are just grabbing for money and doing anything they can. I thought it was more about capitalism than it was sexuality.

That, Chris, is because the image is not sexualized, and only an attention-seeking jerk or his utterly irresponsible lawyer could see it otherwise.

Response #2: if this is true now, it was true 30 years ago.  Why the wait?  Could it be that the average music consumer today wasn’t even born when Kurt Cobain died, and that the demand for Nirvana memorabilia has dwindled accordingly?  Could it be that this is one last desperate effort to exploit a situation Elden did not create?

Many Curmiphiles will know that Curmie often seeks a parallel between life and art.  This time it’s Betsuyaku Minori’s The Elephant that provides the latter.  The central character in that is a survivor of the Hiroshima bombing.  He survives by posing shirtless, showing off his keloid scars and allowing himself to be photographed—for a price—by and with tourists.  But the scars fade over time, and even when covered in baby oil they don’t shine the way they used to.  So it would appear to be with 30-year-old baby pictures, even famous ones.

Finally, there’s Elden’s other lawyer, James Marsh, who opines that anyone who thinks he’s an unethical hack who demeans the experiences of people who really did experience some form of abuse is indulging in “idol worship when it comes to famous people, bands and places.”  Marsh is almost as disingenuous as Mabie, and even more pompous.  It would be a stretch to say that Curmie has any particular positive feelings towards the defendants in the case.  He couldn’t care less if they’re famous, and recognizes that to most of them $150,000 borders on pocket change.  But he also knows a money-grabbing hypocrite when he sees one.  Elden is a jerk.  His lawyers are worse.

None of this changes the ethical quagmire that surrounds the use of the picture to begin with.  It, and at least the Led Zeppelin and Blind Faith examples noted above, are problematic, not because they are necessarily sexualized (although you could make a pretty good case in regards to the latter), but because those photos are now eternal, and the subject of them was in no position to give consent.  If you want to argue the laws ought to be configured differently to better protect minors from exploitation (in whatever form), Curmie’s ready to at least listen.  

But to bring a lawsuit that most experts agree has little if any chance of success, some 30 years after the fact… yeah, when you describe yourself as “being a total little bitch about this,” Curmie can’t help but agree.  And Ms. Mabie and Mr. Marsh are walking lawyer jokes.

Incompetent School Administrators vs. Self-Entitled Lawyer's Kid: Talk about a Battle with No One to Root For!

From California (where else?) comes a story of a school that actually sought to punish a student for plagiarism… and, predictably, got sued for it. A sophomore at Sequoia High School in Redwood got caught having copied someone else’s homework. The boy is in an honors program, and the prescribed punishment for cheating is removal from that program. He will, perish the thought, be forced to finish the year in regular English. Oh, the humanity!

The boy’s father, however, is an idiot asshole attorney, one Jack Berghouse, who just couldn’t resist the urge to strut his stuff. He has filed suit against the school district, its superintendent, and the school principal for having the audacity to enforce the rules specified in the “Academic Honesty Pledge” signed by both the boy and his mother. Ah, but according to Berghouse, the school seems to have two parallel and mutually exclusive policies, one of which says that a student will be removed from class only after a second offense.

It may be that Berghouse has a legal argument, and Jack Marshall, from whose blog article I first heard of this case, is right to argue that “technicalities are important… when important consequences are involved.” That said, I think he’s wrong to wonder if we should “condemn Jack Berghouse for being a good lawyer.”

Why? Because, from where I sit, he isn’t a good lawyer. A good lawyer would have the best interests of his client in mind at all times. What Berghouse has done is to make the fact that his son is a self-important prick—he reportedly posted to Facebook that the school was guilty of “tyranny” for… um… busting him for being a dishonest jackass—national news. Seriously, the people who work in admissions offices for the nation’s top colleges and universities are a pretty savvy lot, often themselves alumni of the schools they now represent. If I’m working in a place like that, I’m checking out news articles all the time.

Here’s what happens if Berghouse isn’t quite such a pompous ass: the school offered to admit the son to the prestigious International Baccalaureate program beginning next year, with no mention of the cheating incident, but he cannot return to Honors English… this year: the story says he will “still be left out of the advanced studies sophomore English class” (emphasis mine). That’s… OMG… another month or so! No college worth a damn cares what section of English a kid took as a sophomore if he’s got an IB degree and good board scores. But Berghouse is too blinded by the worst of lawyerly and/or parenting instincts to see that: he’s got to win, even if winning costs more than not playing.

Here’s what happens now: Prestigious University gets an application from some kid from Sequoia High School. “Wait, Bob, wasn’t that the place where the kid cheated and his father the shyster got him off on a technicality?” “Yeah, Rachel, I think you’re right. Let me Google that… yep… father’s name was Berghouse. What’s the father’s name on that application?” So—is Prestigious University going to be more or less interested in a prospective student who thinks that it’s tyranny to enforce rules of basic honesty and who has a father who’s the stereotypical lawyer, ready to sue anybody for any reason? This time, it’s for enforcing the rules about cheating. Next time, it’s for giving Special Snowflake Berghouse a well-deserved C in Biology or keeping him off the debate team for fabricating evidence.

Moreover, many top colleges have an alumni interview as part of the application process. I did this as a high school senior, and I've conducted a handful of these interviews as an alumnus. And guess what? The alumni interviewer lives in (or near) your town. So even if the news of this case doesn't find its way back to Cambridge or New Haven or Hanover, local news coverage will make it reasonably likely that grads in the Redwood area will be on the lookout for this kid in a year and a half or so.

Perhaps Berghouse’s legal case is sound. I don’t understand how it could be, but I’m not a lawyer, and I do understand that law and justice are discrete concepts. It strikes me, however, that one of two things must be true. Either the document signed by student and parent clearly states a zero tolerance policy, in which case the signatures would, it seems to me, over-ride any possible ambiguity elsewhere… or the pledge itself is ambiguous, in which case why would two members of a lawyer’s family sign it?

Wherever the confusion lies, it’s pretty clear that in adopting a new policy last year, the school missed one place in the old guidelines that just didn’t get updated. Having sat on Bylaws Committees a number of times, I can tell you that such omissions are virtually a fact of life.

But where normal people see an unintentional mistake, self-important jackasses like Berghouse see a loophole. According to the article in the San Mateo County Times, “By drafting a confusing and poorly written honesty pledge, Berghouse said, Sequoia teachers have cheated far more” than, presumably, his obviously cheating offspring. Would someone please slap this asshole? There’s a difference between an honest mistake and an intentional act of dishonesty. And it’s not that the former is worse. Anyone but Berghouse is capable of seeing that distinction. He, however, is a walking lawyer joke.

What is particularly disingenuous, however, is the idea that Berghouse purports to be surprised by the public’s indignation—“I had no freaking idea this would happen.” This suggests of one of two things: that we know where junior learned his dishonesty, or that Papa Berghouse is dumber than an anvil. Actually, the former is pretty clear: we can start with the preposterous claim that the lawsuit is “for the other kids at Sequoia.” Really? Then you’re demanding the re-instatement of the other three students who were caught at the same time? Volunteering your time to re-write the pledge and eliminate the contradictions? Showing appropriate parenting skills and demanding as much accountability from your spawn as from the school? No… didn’t think so.

But it just might be that the latter is also true. There is a particular breed of people who just don’t get it that being a self-entitled jerk does not endear one to the community. Most people, however, don’t like people who get off on technicalities. Hell, I’m a civil libertarian and I don’t like people who get off on technicalities. And let’s say the public reaction isn’t going to go all soft and fuzzy when they find out it’s a lawyer’s kid who doesn’t think he needs to play by the same rules as everybody else.

This isn’t to say the school gets off scot-free, however. First off, there’s that zero tolerance policy, which is almost by definition a stupid idea. Also, of course, the argument is often made that the punishment for such offenses is disproportionate to the crime. This is one of the few times that this claim might actually have merit. The kid is what, 15? 16? He did something really stupid once, and is punished by getting booted out of an English program he otherwise earned? For copying a homework assignment?

I have something of a reputation for identifying and prosecuting plagiarists, and even I think the penalty may be a little steep. There’s a difference between copying a friend’s journal entry and appropriating a term paper. I see both not infrequently. The former leads to a reprimand and a lowered grade; the latter generally results in an F in the course and a formal report to the Dean. Different punishments for different degrees of transgression: what a concept!

Moreover, school policy is messed up in two ways. First, assuming Berghouse is correct in his assertion, the language is self-contradictory, thereby (possibly) allowing little weasels like Berghouse’s son to game the system. But, more fundamentally, the policy, even if well-written, employs the wrong strategies.

If you want to punish plagiarism and cheating, the penalty should show up on the transcript. Take a few points off his English grade for the quarter—fail him, even—and leave him in the course. If it’s an anomaly, no one will care. Although I was a generally very good student in high school, I got a 70 in Math one quarter (not for cheating: it was just that Analytic Geometry and I weren’t exactly friends). Not a single school as much as wondered what had happened; I was accepted everywhere I applied, including the Ivy League college I ultimately attended.

More to the point, there’s no good to be achieved by putting this young man in a regular section of English. It might, might be different in math or science, something less inter-active. But even at the high school level, a good English class is likely to be something of a seminar, meaning that the contributions of individual students matter. Students learn from each other, with guidance from the teacher. That means everyone in Honors English is being punished because of this incident. And everyone in the regular English class gets to deal with passive-aggressive MiniBerghouse, who is bored as well as arrogant and dishonest. Jolly.

No one wins here. The school looks bad for developing a frankly rather dumb, inflexible, and apparently poorly written policy; the district has to divert funds from its educational programs to defend a lawsuit against the likes of Berghouse, who appears to be everything that is worst about lawyers and parents rolled into one smug little package. The boy is punished not merely by having such a pain in the ass for a father, but may, because of the publicity this case generates (I’m happy to help, by the way), actually be more likely to be turned down by his chosen university.

More importantly, however, the entire American education system suffers, as schools across the country increasingly take note of the perils of enforcing standards—whether they be for scholarship, integrity, whatever. And that portends a bleaker future for all of us.