Nigel Hayes Is Playing in March Madness, and Taking On NCAA Amateurism in Federal Court
Wisconsin forward Nigel Hayes has become an outspoken advocate for paying campus athletes, and has joined a lawsuit against the NCAA that seeks to end college sports amateurism. Why is he taking a stand?
Mary Langenfeld-USA TODAY Sports
"We deserve to be paid." Nigel Hayes doesn't need to say this. He definitely didn't need to join an ongoing lawsuit against the National Collegiate Athletic Association, either. Taking on the college sports establishment can be a real headache—and frankly, Hayes could leave it alone. He has pro potential; he's well on his way to a meaningful degree; he appears to have a bright future, in or out of basketball. The system? It's working for him. Yet here he sits in the ballroom of a Washington, D.C. hotel, a few weeks before the start of the season, telling reporters that campus athletes like himself deserve a bigger piece of the pie.
There are easier topics of conversation.
Hayes could talk about being an all-academic honoree, and how he studied for a finance exam while attending the previous spring's NBA draft combine. He could bring up his penchant for community service, or his much-chronicled love of pancakes, or the time he charmed America's stenographers—and pretty much everyone else—during a previous NCAA postseason run by humorously and purposefully peppering his press conference remarks with finger-blistering words such as "cattywampus" and "antidisestablishmentarianism."
All of that would be safe. Uncontroversial. Heck, Hayes could even discuss hoops. This is the Big Ten's annual media day, after all, and the versatile six-foot-eight, 235-pound senior forward for Wisconsin had just been named the conference's preseason player of the year.
Speaking of which.
"It's the dumbest thing," Hayes says. "It's worse than a participation award. At least when you get a participation award, you did something."
A small, satisfied smile.
"Preseason player of the year, I didn't do anything. I showed up, and they said, 'You might be good this year. You might not. But we think you might!'"
Herein lies the problem. Hayes is perceptive, and honest. Shut up and play ball? When he sees something, he says something. Two days from media day, Hayes will appear on ESPN's College Gameday before a Wisconsin home football game, holding a sign reading "Broke College Athlete Anything Helps" and directing spectators to the brokebadger1 handle of a send-cash Venmo account. But right now, in this conference room, on an October afternoon, he's explaining how he and his teammates are being exploited, and why the same multibillion-dollar amateur campus sports economy that provides them with athletic scholarships—and not a nickel more—is bullshit.
"I don't know how much money I've brought in [to Wisconsin]," Hayes says. "But it probably has been millions. I know Final Fours generate a lot of money, and I've been to two of those. So I deserve a check. Yeah. Just like all my teammates."
As March Madness unfolds, Hayes likely won't be the only participant who believes that he deserves a larger share of the wealth generated by big-time college sports—including more than a billion dollars in annual television rights fees for the NCAA tournament alone. But he will be one of a handful of players willing to say that out loud, and the only athlete who is also challenging the status quo in court. A 22-year-old business finance major from Toledo, Ohio, Hayes is a named plaintiff on a federal antitrust lawsuit brought by former Clemson football player Martin Jenkins against the NCAA and the five most profitable sports conferences, a class-action case that seeks to overturn amateurism rules and create a free market for football and men's basketball players.
While Jenkins v. NCAA has yet to be resolved—or even receive a trial date—Hayes already has taken flak. College athletics are popular; anyone seen as threatening them, less so. When Hayes added his name to the suit in 2014, a columnist for Wisconsin's student newspaper wrote that he couldn't empathize, and that Hayes should "hunker down, practice hard, and play well." More recently, Sporting News writer Mike DeCourcy scoffed at Hayes' protest sign, arguing that if Hayes really felt like he was being fleeced by his school, he should have left for the NBA. Being a campus sports dissident is hard, and draining, and critics give you lots of unsolicited life advice. "As outspoken as Nigel can be, he's very sensitive to what people say about him," says Zach Bohannon, a friend and former Wisconsin teammate. "It can be a burden, weigh on you over time. It would be 110 percent easier to not do it."
Hayes didn't have to make his life more challenging, or take on a system that has been stymying change since long before he was born. He chose to. And as his time as a college athlete comes to an end—the Badgers' next loss will be Hayes' last game in a Wisconsin uniform—one question lingers.
Frank Kaminsky was pissed. It was the summer of 2013, and the little-known junior center for Wisconsin was about to make a name for himself, eventually becoming college basketball's player of the year, a NBA draft lottery selection, and something of a folk hero.
But not yet. On this afternoon, the Badgers' upperclassmen were welcoming the program's incoming freshmen with a pickup game. No coaches. Kaminsky and Bohannon, a senior, on one side; newcomers Hayes and Vitto Brown on the other. "They just came in and dominated us," Bohannon says. "They were big and athletic and physical." When it was over, Kaminsky drop-kicked a basketball.
"I remember him screaming at me, 'Zach, are you going to play any effing defense today?'" Bohannon says with a laugh. "That ball almost landed in the upper deck."
Hayes didn't come to Wisconsin looking to change college sports. Just fitting in with his teammates—and maybe kicking their butts in practice—was enough. If anything, he was the sort of person amateurism advocates such as NCAA president Mark Emmert tout as living proof that the system is worth preserving. A real student-athlete. At Toledo's Whitmer High School, Hayes was a good-but-not-great basketball prospect, an unselfish big man who also excelled in football at wide receiver. "His junior year, he was on a team that went to the state semifinals, with guys that will be in the NFL," says Bruce Smith, Hayes' high school basketball coach. "And in my opinion, he was their best player.
"I asked Nigel after his fifth game, 'How many times have you even been on the ground this season?' He said four. And he was upset! His goal was to be under ten for the whole year."
Hayes was a stickler in the classroom as well, graduating with a 4.2 grade-point average and receiving straight A's. Er, almost. "One time he got a B," says his mother, Talaya Davis. "It was a big deal. I know because we were just talking about it. He still remembers the name of the teacher who gave it to him." Davis labels her son an "extremely easy kid"—never a problem in school, always studying or at the gym, an energetic self-starter. At Wisconsin, he could have stayed on that path, tending to his game and his homework and letting others worry about what's fair for college athletes. Hunker down, practice hard, play well.
Instead, Hayes met Bohannon, a voracious reader who, after choosing to major in economics, began devouring sports-related books like Scorecasting and 14 Sports Myths and Why They Are Wrong. "On our team, I was an outspoken critic of the hot hand myth," Bohannon says. "Statistics don't back it up. Everyone laughed at me. They thought I was just a nerd who had never been hot before."
For a debate class, Bohannon was asked to address pay-for-play in college athletics. He figured he would argue against it. Pay us? Please. Then he did his research. Many economists described the NCAA as a classic cartel: a group of competitors colluding to suppress on-field labor compensation by calling athletes amateurs, and then using the millions not going to players to build lavish facilities and enrich coaches and administrators. The numbers were stark: in the NFL and NBA, where athletes are represented by unions, they were receiving about 50 percent of total sports revenues; in big-time college football and men's basketball, they were getting about 10 percent. The average Division I football coach was making more than $2 million a year. The average athletic director was pocketing more than $500,000 annually. Meanwhile, one study estimated that scholarship compensation left 85 percent of revenue sport athletes below the federal poverty line, with many players relying on federal Pell Grants and food stamps to get by. Campus sports leaders talked about "protecting" Bohannon and his peers from commercialization, but as far as he could tell, the only thing being protected was the lion's share of the money.
"The more and more I started to learn for my debate, the more I realized there was no good reason that college athletes in the revenue sports shouldn't be paid," Bohannon says. "It's comical."
Among his teammates, Bohannon was known for being informed and opinionated about politics and current events. He was the guy who embarked on a successful Twitter campaign to get President Barack Obama to visit with the Badgers during a 2012 campaign stop, and who always changed the locker room television from ESPN to CNN, MSNBC, or FOX News. Now he began to speak out about the NCAA. During Wisconsin's run to the 2014 Final Four, he was stopped by security while trying to enter Anaheim's Honda Center for a team practice. His crime? Carrying a bottle of Nestle-brand water. The NCAA's official water sponsor was Dasani. "They told me I couldn't come in," Bohannon says. "Not even with it inside my backpack."
Is this a joke? Bohannon asked.
"They told me I had to throw it away, or rip off the label," he says.
Hayes saw it all. He read the articles Bohannon passed along to him, like Pulitzer Prize-winning civil rights historian Taylor Branch's Atlantic cover story on the NCAA, which argued that amateurism was "a bill of attainder, stripping from college athletes the rights of American citizenship." He listened when Bohannon shared tidbits from his ongoing research, like the fact that the term "student-athlete" was invented by the association in the 1950s to dodge workers' compensation payments to the families of athletes who had died playing college football. "Whenever I spoke about NCAA issues, Nigel was always there," Bohannon says. "He always had a twinkle in his eye. You could tell he was intrigued."
Bohannon used up his playing eligibility that spring, but stuck around the basketball program while pursuing a graduate degree. He had become active with the National Collegiate Players' Association, a college athlete advocacy group founded by former UCLA linebacker Ramogi Huma. Huma previously had put Bohannon in touch with Sonny Vaccaro, a former shoe company dealmaker and longtime basketball insider who had become an outspoken critic of the NCAA. Vaccaro asked Bohannon to consider joining an antitrust lawsuit against the association over athlete name, image, and likeness rights brought by former UCLA basketball star Ed O'Bannon; Bohannon declined, feeling that he already was maxed out between basketball and studying. Still, he participated in the NCPA's weekly athlete conference calls, and later became close with Northwestern quarterback Kain Colter, who spearheaded a unionization effort by his football teammates.
In the summer of 2014, Huma reached out with a new opportunity. Another lawsuit against the NCAA was coming, this one directly challenging amateurism, and led by high-powered sports attorney Jeffrey Kessler, who previously had helped NFL players achieve free agency. Did Bohannon know any current college athletes who would be interested in joining?
"I have the perfect guy," Bohannon said.
Bohannon approached Hayes, the same fearless freshman who had beaten him out to be the Badgers' sixth man, and gone toe-to-toe with him in dozens of hard-fought practices. The teammate whose charisma would soon make him a fan favorite, and whose inquisitive, thoughtful nature reminded Bohannon of himself.
Nigel, I think you should do this.
Do you think this will best for me?
Yes. And also for the cause of college athletes.
OK, then I'm in. Tell me what I need to do.
"There wasn't much debate," Bohannon says.
Hayes concurs. "It was an easy decision, actually," he says of joining the Jenkins suit. "That was young and naive Nigel. I was just thinking I could help athletes get paid to play."
Another small smile.
"Knowing what I know now, I would have said yes faster."
Like Bohannon, Hayes didn't always object to NCAA rules against compensating athletes. He came to campus—to borrow a phrase—young and naive. That didn't last. Hayes read an article breaking down just how much money schools were making from jersey sales. He saw an online report that Emmert had been paid $1.9 million in 2014. At the same time, he found himself and his teammates wolfing down every last snack put out in the Wisconsin locker room during his freshman summer—"We were all out of money," Hayes says, "so we couldn't get anything else to eat"—and similarly out of luck when he wanted to go home to visit his parents. Hayes didn't have a car. He couldn't afford a plane ticket.
"It was, 'Hey Mom, love you from Madison, would love to come see you, but I don't have any money,'" he says. "Meanwhile, there are no No. 10 jerseys [Hayes' number] at the [campus] bookstore. Not because they don't sell them, but because they're sold out.
"That is when I was like, wait a second. There's a little disconnect here."
Of course, it's one thing to believe that something is wrong, and quite another to speak out about it. Particularly when schools and coaches unilaterally control scholarships and playing time. "A lot of players are scared of repercussions," Bohannon says. "They don't want to rock the boat."
Bohannon figured Hayes would be an ideal face for the Jenkins suit: smart, informed, a business student, and a key player on the floor. "From day one," he says, "you knew Nigel was going to do big things." What Bohannon didn't realize was how much Hayes would embrace public advocacy, too. A day before crashing ESPN's Gameday with his "broke athlete" Vimeo sign—Hayes ultimately raised roughly $10,000, which he donated to a local Boys and Girls Club—he took to Twitter to discuss pay-for-play.
In a subsequent interview with ESPN, Hayes said that while he wasn't "broke" himself, he wanted his sign to speak for athletes who are, and provoke public debate. Talaya says she had no idea Nigel was going to protest—not until she saw it online. She was proud of her son, in part because she agreed with him. "It's a business, and the players are already working at the college level," she says. "They're just not getting paid. And Nigel's not this single-parent child who's so poor and trying to make it to the NBA and yadda yadda yadda. We're not rich, but we do fine."
On Twitter, a picture of Hayes holding his sign went viral. It wasn't his first time using social media to make a broader point. Ever since his former AAU basketball coach, Quentin Rogers, gave him a copy of The Autobiography of Malcolm X, Hayes has been an ardent reader of books and articles about the Civil Rights movement and African-American history; last summer, the background photo on his Twitter page was a drawing that included the faces of W.E.B. Du Bois, Marcus Garvey, Martin Luther King, Paul Robeson, Huey P. Newton, and Malcolm X.
After protests erupted in Charlotte last September over the shooting death of Keith Lamont Scott by police, Hayes wrote a series of more than 40 tweets about race in America, expressing anguish over inequality and police violence and debating some of his followers:
In October, two fans at a Wisconsin football game wore Halloween costumes depicting President Obama with a noose around his neck. Neither was asked to leave Camp Randall Stadium, and while school administrators later criticized the outfits, they defended the right to wear them. According to Inside Higher Ed, this came after three other bigoted incidents on campus: a student taping swastikas and photographs of Hitler on the door of a Jewish student's room; three students disrupting an event about Native American sexual assault victims with "war cry" yells; and someone slipping a note reading "Fuck you nigger bitch" under the door of a biracial student.
Hayes again took to Twitter, this time to share a statement from himself and other Wisconsin athletes of color. He and teammate Jordan Hill also stood a step behind his teammates while the national anthem was played during some of the Badgers' early season games—a gesture Hayes said was inspired by NFL quarterback Colin Kaepernick, and intended to bring awareness to unequal treatment of African-Americans.
"A lot of people don't think racism exists," Hayes says. "One guy tweeted at me, 'What are you talking about, blacks and whites are treated the same.' People actually believe that. So my job is to be like, 'Nah, dawg, look at this laundry list of things that show you the injustices.' People don't believe, so I go, 'OK, look at these facts.'
"You can't dispute facts. It's up to you whether you want to read or believe them. But facts don't care whether you believe. It's like the sun being yellow. You can believe all you want that it's green. It's yellow."
If it seems that Hayes wears two different activist hats—NCAA economics by day, America's ongoing legacy of racial prejudice by night—well, he disagrees. There's a connection, he says. And you don't have to squint very hard to see it. Revenue sport college athletes like him are predominantly black. Coaches and administrators are overwhelmingly white. The latter group makes the rules, and controls all of the money.
Critics (myself included) have argued that ostensibly colorblind regulations prohibiting athlete pay are anything but, essentially transferring large amounts of wealth from poor, young, and black laborers to rich, older, and white managers. In public opinion polls, a majority of whites are opposed to pay-for-play; a majority of blacks support it. Recent academic research suggests that racial resentment is one of the main factors fueling white resistance to compensating student-athletes. Branch famously wrote that campus sports carry "an unmistakable whiff of the plantation." Bohannon, who is white, agrees. "People will bash me for saying this because of who I am and coming from a school like Wisconsin, but the system is inherently regressive and structurally racist," he says. "No matter how you look at it."
In both federal court and the court of public opinion, the NCAA and its defenders long have asserted that paying athletes will somehow compromise their educations. There's no actual evidence for this. Nevertheless, the appellate judges who upheld the key ruling in the O'Bannon case—that the NCAA and its member schools are violating antitrust law by limiting player compensation—also decreed that any compensation should be tethered to educational expenses, just because.
In turn, this could affect how Jenkins plays out. For legal reasons, Hayes can't publicly comment on the case. But when he thinks about college sports in general, he can't help but wonder if the notion that paying athletes will cripple them in the classroom doesn't carry a familiar, disturbing whiff.
"The majority of players—and the marquee ones—are black," Hayes says. "You can't trust them with money? It's an insult to athletes' intelligence and maturity levels, saying we don't have enough responsibility to have money, focus, and still study.
"It's stupid, too. Like there's no such thing as a working student. [Other students] make a couple dollars for their local restaurant. They go to class and can get paid. I work out for five to six hours a day, and I make millions for the school. I go to class and can't get paid? That's ridiculous. Why is that even an argument?"
Before the 2015 Final Four, Hayes and his teammates taped a television segment with sportscaster Jim Nantz. At one point, an older, white-haired man entered the room, and began shaking hands with everyone. Who is that? Hayes asked.
Mark Emmert, he was told.
Hayes chuckled to himself. What could he say, really, to the NCAA's most prominent executive? Nice to meet you. I'm suing you. But nice to meet you. "I think [Emmert] smiled," Hayes says, recalling their handshake. "[The lawsuit] wasn't something at that point of time where he wanted to go."
Was it awkward?
"I can't feel awkward about standing up for what's right."
Perhaps not. Still, standing up is hard work. It can be wearying. In March of 2015, Hayes gave a deposition in the Jenkins case before NCAA lawyers. He said that individual schools should be free to decide how much to pay revenue-sport athletes, and that allowing them to do so would make players "better off." The next night, Wisconsin played a game at Minnesota. Sixteen days later, the Badgers opened play in the NCAA tournament.
"If you think about everything Nigel does, he does a lot more than most adults do," Talaya Davis says. "The workouts on his own, the school time in class, the practices, the rehab, the community service, the studying for tests. I don't know where he finds the time for anything else.
"We talk every day, and sometimes when we're on the phone, he's reading [a book] or on his iPad," Davis laughs. "And I know it!"
When Hayes first joined the Jenkins suit, Wisconsin's athletic department released a statement expressing support for him as "a student and team member," but also reiterating that the school did not believe in the "professionalization of intercollegiate athletics." For the last two years, Hayes has occupied a weird, dissonant space: of college sports but apart from them; playing for his school while confronting it; chasing championships in the NCAA's premier cash-cow event while saying no mas. In return, fans have called him selfish, misinformed, and ungrateful. Marquette guard Duane Wilson ripped Hayes' Gameday protest as "corny and sad," said he was "blessed to get a free education," and suggested Hayes only did it to get "social media attention."
Does it get to Hayes? He won't say. It's easy to forget that he's still a young man, and still very much trying to figure things out. He's not far removed from the 20-year-old who whispered to Kaminsky, "God, she's beautiful" about a stenographer at an NCAA tournament press conference, only to bury his face in his hands after realizing his microphone was live. And he's not far removed from the high school senior who missed exactly one of 45 basketball team morning shootarounds—and, according to his coach, "was angry at himself the whole year."
Last summer, Hayes typed up a list of personal goals: athletics, academics, and community service. Enough items to almost fill an 8-by-11-inch sheet of paper. He placed a checkbox next to each one, printed out multiple copies, and posted the list in his locker, on his refrigerator, and on his bedroom wall—the better to see it upon waking up. According to his mother, the actual items are secret, though Hayes himself has admitted that winning an NCAA title and "doing everything I can on and off the court to be the greatest Badger basketball player of all time" are among them.
Hayes is used to achieving just about anything he puts his mind to. When he was failing a 300-level finance course, he crammed for the final during the NBA combine, working around interviews and drills, and then aced the test. "I found about that when I read about it," Talaya Davis says. "I was like, What?" During the summer heading into his sophomore season at Wisconsin, he woke up every day before 5 AM to work on his jump shot; after connecting on just 58 percent of his free throws and not attempting a single three-pointer as a freshman, he upped his foul shooting by 17 percentage points and made 35 of 92 triples. Spend time on Wisconsin's campus, and you may see a poster with a picture of Hayes reading The Autobiography of Malcolm X, part of a university library literacy program.
Hayes was a first-team All-Big Ten performer as a junior. This season, he was named to the all-conference third team. The Badgers are a No. 8 seed in the NCAA tournament, and will be hard-pressed to match the postseason success of Hayes' first three years: Final Four, national runner-up, Sweet Sixteen. Both he and his team have been inconsistent. "He didn't have quite as good a season he could have hoped for," Bohannon says. "I think that put a burden on him."
Did Hayes' advocacy add to that burden? It's possible. Basketball is difficult enough; only one school wins a title each season. Meanwhile, nobody has ever upended NCAA amateurism. "I felt [that pressure] when I spoke out," Bohannon says. "You're not going to make any change. So just shut up, and go play."
Back at Big Ten media day, Hayes won't shut up. He's rolling now, holding court. Student-athlete? Not the correct term, he says. No such thing.
Basketball schedules are made for television networks. Travel is work. Money dictates everything. Wisconsin's contingent came to Washington on a private jet, and the only reason Hayes is here in the first place—closer to the Atlantic Ocean than the Big Ten's traditional Midwestern home—is that the conference added the University of Maryland during a recent expansion, the better to introduce its eponymous television network into the large and lucrative D.C. market.
"We're here for sports, and sports alone," he says. "Especially a basketball player. You're here to win games. And in the meantime, if you want to go to class, you can."
Hayes isn't wrong. But that's not the mythology the NCAA sells. And it's not what anyone—fans, coaches, federal judges, even Republican members of Congress—wants to hear. "A lot of people gave Nigel flak," Bohannon says. "Like, 'Nigel needs to be quiet and just worry about this season. He has a lot to play for. He won't be able to play in the NBA if he keeps taking these stands.' Well, why are these things mutually exclusive?"
Hayes has nothing to gain from the Jenkins suit. It will outlast his college career—and besides, it seeks an injunction against player compensation limits, not damages for previous harm. If the plaintiffs win, future college athletes may get paid. Hayes won't. "When people start complaining that he is greedy and selfish, I don't even know that they're taking about," Talaya Davis says.
In a way, Hayes seems like the least likely person to take on the NCAA. He loves playing basketball. He's damn good at it. He loves being a student, too, and has spent the last four years expanding his mind—becoming, as he jokes, woke. He's everything a campus athlete is supposed to be. Only that's the thing: anyone willing to study and learn can figure out that something is amiss, and that economic exploitation dressed up in a cap and gown is still wrong. The irony of the big-time college sports system isn't that it helped to produce someone as self-aware as Nigel Hayes; it's that it generally fails to produce more people like him.
"This is amateur sports, right?" Hayes says. "Then why does Coach have a $10 million contract? If he's an amateur coach for an amateur sport, why does he get paid and I don't?"
On it goes. The more Hayes talks, the more it becomes clear: he can't help himself. He knows he's right, and he wants to share. Why bother? Simple. Keeping quiet would be harder.
Pay the players, Hayes says. Lots of coaches agree. They just don't say so out loud, for the same reason many professional athletes don't sound off about social issues. Dollars and sponsorships. Too much to lose.
Fortunately for Hayes, he doesn't have that problem. "In my case, as an NCAA athlete, you can't fine me," he says, flashing another small smile. "You can't take my money."
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