The historic, 146-day writers’ strike finally appears to be over. Details are scarce, but the Writers Guild of America sounds triumphant: It’s calling the deal “exceptional” and heralding gains in just about every arena. And though there are many reasons that the union ultimately won out — smart organizing and a memeable picket line, strong allyship from SAG-AFTRA, and tactical blunders by the studio execs among them — there’s one thing above all that lighted up the action: The way the writers refused to let bosses use AI to exploit them.
At a moment when the prospect of executives and managers using software automation to undermine work in professions everywhere loomed large, the strike became something of a proxy battle of humans vs. AI. It was a battle that most of the public was eager to see the writers win. It’s not the only reason why Americans overwhelmingly had the writers’ backs over the studios — according to one Gallup poll, the public supported them over the execs by an astonishing margin of 72% to 19% — but it was a big one.
As veterans of the five-month strike will tell you, concerns over the use of generative AI such as ChatGPT were not even top of mind when the writers first sat down with the studios to begin bargaining. The WGA’s first proposal simply stated the studios would not use AI to generate original scripts, and it was only when the studios flatly refused that the red flags went up.
That was when the writers realized studios were serious about using AI — if not to generate finished scripts, which both sides knew was impossible at this juncture — then as leverage against writers, both as a threat and as a means to justify offering lowered rewrite fees. That’s when the WGA drew a line in the sand, when we started seeing signs on the picket lines denouncing AI go viral on social media and headlines that touted the conflict gracing the newspapers like this one.
Every time I went down to the picket lines, AI was easily the top issue the writers wanted to discuss, in large part because it was the one that seemed a direct existential threat to the job of being a screenwriter itself. Opinions on the precise nature of the AI threat varied. Some thought the technology was utter garbage that couldn’t write a worthwhile script no matter the prompts it was given, and feared it would simply be used as an excuse to push down wages.
Others were legitimately worried that studios would try to use generative AI to take their jobs anyway, or that it would eventually get good enough to turn out a serviceable product. If that were the case, then many feared what would be lost in the process — films and series colored by real-life experience, that explored the human experience. You know, art. There was a palpable fear that tech products, built by rich and mostly white startup guys in Silicon Valley would churn out content that would reflect exactly that.
Regardless of the nature of the grievance, everyone agreed handing studios the power to decide how to use generative AI was a bad idea. All seemed to understand the importance of that red line against letting bosses automate their work away for the sake of cost-cutting, or improved efficiencies.
And the nature of that resistance was contagious. “I feel strongly about a lot of the things that the writers are striking over, from making sure that they have a minimum number of writers in a writers’ room to regulating AI,” the actor and SAG member Ellen Adair told labor journalist Alex Press in the early days of the strike.
When it became clear that studios were just as keen to automate acting as they were writing work — studios allegedly wanted the right to use motion capture to scan background actors, and use their likenesses in perpetuity — the actors pushed back too; SAG went on strike in July. Major celebrities such as Bryan Cranston and SAG negotiator Fran Drescher spoke out against AI, making common cause.
The red line that the writers drew was clearly inspiring, and unifying; not just among the screen actors who faced similar fears, but to all those watching the headlines touting an impending AI takeover, or reading memos from their managers announcing initiatives to explore the use of AI in their workplaces. That includes all the illustrators, journalists and copywriters who’ve been watching nervously as their work seemed to dry up as management embraced tools such as Midjourney and Bard.
A funny thing happened then. Observers, reporters, and even the Hollywood workers themselves began to refer to the strikers as Luddites. The real Luddites; not the caricatures. American culture has long derided anyone who protests technology by calling them a Luddite. It’s supposed to mean “ignorant” or “backwards-looking” — but that’s all wrong. The likes of Wired and Fast Co. were calling the protesters Luddites in a favorable sense, because more and more people understand that the real Luddites were not opposed to technology itself, but the way that it was used, and who it was used against.
I’ve spent the last five or so years researching and writing about those real Luddites, so I can assure you that they were smart, tech-savvy workers who saw entrepreneurs trying to automate their jobs or displace them with machines, and responded with force only after peaceful efforts to rein in the “machinery hurtful to commonality” failed. They were fine with most tech, but drew a line at the stuff that exploited them for the sole purpose of enriching another.
As such, in drawing that red line against AI, a tactic that proved so successful, the writers pulled a page out of the old-school Luddite playbook. And, like the Luddites of the early Industrial Revolution, who were for a time as beloved in England as Robin Hood, it proved extremely popular. It’s worth cheering too, as this is, I expect, just the beginning. Hollywood is far from the only industry eager to cut costs by automating work with generative AI.
From the beginning of the strike, I’ve argued that the writers are leading the way in showing workers everywhere how to resist potentially exploitative uses of AI in the workplace — and now, more than ever, that’s been shown to be true. There is great power in drawing a hard line, in refusing to let a boss use technology to erase your job, in speaking up about how you would or would not like technology to shape your life. And, if it seems that it’s only going to degrade or disrupt your way of life, there is great power in saying no. Just ask the writers.
Video: Harris Not Worried About Biden Trailing Trump in Key Polls
1 00:00:00,000 —> 00:00:05,030 “Former President Trump, not only on a national level, 2 00:00:05,030 —> 00:00:09,710 appears to be beating the Biden-Harris ticket, 3 00:00:09,710 —> 00:00:14,780 but uniquely in those five of the six key swing states, 4 00:00:14,780 —> 00:00:16,450 that seems to be the case. 5 00:00:16,450 —> 00:00:18,980 What do you think when you see the polls?” 6 00:00:18,980 —> 00:00:20,493 “Listen, if I listened to polls 7 00:00:20,493 —> 00:00:22,160 I would have never run for my first office 8 00:00:22,160 —> 00:00:23,040 or my second one. 9 00:00:23,040 —> 00:00:24,570 And here I am as vice president. 10 00:00:24,570 —> 00:00:27,260 There are fundamental freedoms that are at stake 11 00:00:27,260 —> 00:00:29,730 right now, and the American people do understand that. 12 00:00:29,730 —> 00:00:33,080 And again, I will point to the midterms and the most 13 00:00:33,080 —> 00:00:36,980 recent elections — when freedom was on the ballot, 14 00:00:36,980 —> 00:00:40,580 be it from Kansas to California, Ohio to Virginia.” 15 00:00:40,580 —> 00:00:41,410 “Do you think the polls —” 16 00:00:41,410 —> 00:00:42,240 “The American people voted in favor. 17 00:00:42,240 —> 00:00:44,270 “Do you think the polls are just wrong? 18 00:00:44,270 —> 00:00:46,490 “That’s a little too simplistic, 19 00:00:46,490 —> 00:00:48,470 with all due respect. 20 00:00:48,470 —> 00:00:51,020 I don’t think that we should use 21 00:00:51,020 —> 00:00:56,150 polling as our only measure of who we are as Americans, 22 00:00:56,150 —> 00:00:59,240 and our values and our principles 23 00:00:59,240 —> 00:01:00,740 and our priorities.” 24 00:01:00,740 —> 00:01:06,480 “Your ratings, 38.5 percent, Biden’s, 40.4 percent 25 00:01:06,480 —> 00:01:09,030 and Trump is higher. 26 00:01:09,030 —> 00:01:13,800 Ron Klain says this, and and you’ve seen press about 27 00:01:13,800 —> 00:01:15,160 yourself over the years. 28 00:01:15,160 —> 00:01:18,090 He says that he believes that your popularity 29 00:01:18,090 —> 00:01:22,080 or unpopularity or whatever rating you want to put it as 30 00:01:22,080 —> 00:01:25,312 is a function of sexism and racism. 31 00:01:25,312 —> 00:01:26,770 He says that’s part of the problem. 32 00:01:26,770 —> 00:01:28,990 He says she doesn’t get the credit for all that 33 00:01:28,990 —> 00:01:29,830 she’s done. 34 00:01:29,830 —> 00:01:31,880 Do you think that’s true?” 35 00:01:31,880 —> 00:01:34,635 “Well, are we talking about the media or people? 36 00:01:34,635 —> 00:01:35,760 As it relates to the media, 37 00:01:35,760 —> 00:01:38,410 I’m sure some of that is true.”
Column: This lawsuit has the NCAA staring down extinction. Is that a bad thing?
There can be few American public institutions more widely destested than the National Collegiate Athletic Assn.
The NCAA spent decades promoting the ideal of the amateur “student-athlete,” barring football and basketball players from compensation while their coaches and university athletic directors collected millions of dollars a year. Its disciplinary system, rife with favoritism and inconsistencies, is honored by member universities more in the breach than the observance.
And when it doesn’t get its way, it hasn’t been shy about bullying — not that it always works, as when it threatened in 2019 to ban California universities from championship games if the Legislature voted to allow payments to those student-athletes.
Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.
— Supreme Court Justice Brett Kavanaugh
(The measure in question passed anyway and was signed into law by Gov. Gavin Newsom.)
As it happens, the very issue covered by that legislation — compensation for the use of college players’ “names, images and likenesses,” or NIL for short — is at the center of what the NCAA implies could be an extinction event for the collegiate sports system as we know it today, if not for the NCAA itself.
The NCAA’s hand-wringing has come about because federal Judge Claudia Wilken of Oakland has certified an antitrust lawsuit naming the association and its five most important regional sports conferences, the so-called Power Five, as a class action.
Wilken designated three classes of plaintiffs: current and former men’s football and basketball players in the Power Five conferences, current and former women’s basketball players in those conferences, and all other current and former athletes who competed on Division I teams prior to July 1, 2021, and have received NIL payments from third parties under the NCAA’s temporary suspension of NIL payment restrictions.
The athletes who brought the case have asked for $1.4 billion in damages, which under antitrust law would be trebled if they win, for a total of $4.2 billion.
A judgment of that magnitude, the NCAA says in an appeal brief, “would necessitate curtailing college sports programs across the country.” It says it would face “intense pressure to settle,” presumably on highly disadvantaged terms — at least for the association, the athletic conferences and the administrators who have been running university programs on a business model dependent on paying athletes virtually nothing.
This problem is the product of the transformation of college football and basketball into big businesses so rich and powerful that they often overwhelm the academic goals of their universities.
Who’s responsible? The NCAA and the universities with big-money programs themselves. They built these enormous financial edifices on a business model based on the players’ free labor.
“The hard work of college athletes,” the plaintiffs observed in their lawsuit, “has translated into billion-dollar television deals, multi-million dollar coaching salaries, extravagant facilities, and lucrative commercial licensing and sponsorship agreements” for the NCAA, its conferences and their executives.
Now that the financial ground is shifting under the feet of the NCAA and the richest athletic programs, they’re feeling the pain from the collapse of their franchise.
The numbers tell the story.
In recent years the Big Ten, Southeastern and Big 12 conferences signed multiyear television deals for football worth a total of more than $12 billion. In 2016, the NCAA renewed its contract with Turner Sports and CBS for broadcast rights to its men’s basketball tournament for $8.8 billion over eight years.
The lawsuit plaintiffs assert that more than 150 football and basketball coaches in the NCAA’s elite Division I earn more than $1 million a year; the best-paid 25 football coaches collect an average of $5.2 million and the top 25 basketball coaches an average of $3.2 million. In fiscal 2021-22, NCAA President Mark Emmert earned nearly $3.3 million, according to NCAA disclosures. Emmert retired earlier this year, but it’s a fair bet that the compensation of his successor, former Massachusetts Gov. Charlie Baker, will be in the same neighborhood.
That should provide context to the NCAA’s long drive to keep student players on a short financial leash, in order to preserve the impression that the players are merely amateurs, playing sports out of love for the game.
The opening of the NIL spigot has provided a bounty for star college football and basketball athletes.
Seven-figure NIL endorsement deals have been signed by marquee players, topped by USC basketball player Bronny James, the son of Lakers star LeBron James, for $5.9 million from Nike and Apple’s Beats by Dre, among other brands; University of Colorado quarterback Shedeur Sanders, the son of former NFL star and current Colorado coach Deion Sanders, for $4.5 million from brands including Adidas and Gatorade; and University of Texas quarterback Arch Manning, the nephew of retired NFL quarterbacks Payton and Eli Manning and grandson of NFL quarterback Archie Manning, for deals totaling an estimated $2.8 million.
Other top players without gilded parentages are also receiving eye-popping deals.
The NCAA’s position that amateurism is crucial to maintaining fans’ enthusiasm for college football and basketball has been under attack for the better part of a decade. In 2014, Wilken chipped away at the NCAA’s ban on NIL compensation, in a landmark case launched in 2009 with former UCLA basketball star Ed O’Bannon as lead plaintiff.
Wilken recognized big-college sports as a business, not amateur competition. But her solution was to allow NCAA schools to set up trust funds of several thousand dollars per player per year to hold their shares of the licensing revenue they had earned until graduation. She rejected the plaintiffs’ proposal to allow student-athletes to make commercial endorsements, because she accepts that the NCAA and its member schools should protect the students from “commercial exploitation.”
The NCAA had already sustained two blows in 2021. In June, the Supreme Court ruled narrowly, but unanimously, that the NCAA was subject to antitrust laws and that its restrictions on certain education-related benefits for athletes breached the laws. In a concurring opinion, Justice Brett Kavanaugh ridiculed the NCAA’s argument that fans would abandon big-time football and basketball if they knew the players were getting paid.
“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate,” Kavanaugh wrote.
In the wake of the Supreme Court ruling the NCAA, perhaps detecting the writing on the wall, temporarily suspended its ban on NIL compensation while working out a system of new rules.
The following September, National Labor Relations Board General Counsel Jennifer A. Abruzzo issued a memo defining scholarship athletes at academic institutions as employees. Calling them “student-athletes” is legally a misclassification, Abruzzo said; in fact, she explicitly refused to accept the term in her memo, on the grounds that it had been coined chiefly “to avoid paying workers’ compensation claims to injured athletes.”
Abruzzo drew from the Supreme Court ruling as well as a sea change in the law and what she called “the societal landscape,” which she said “demonstrate that traditional notions that all Players at Academic Institutions are amateurs have changed.” Her memo opened the door to fairer compensation for athletes and even to giving them the right to unionize.
This May, the NLRB’s Los Angeles office followed Abruzzo’s lead by filing a complaint against USC, the Pac-12 Conference and the NCAA, alleging that they broke the law by misclassifying college athletes in men’s and women’s basketball and football as student-athletes rather than employees. The case is pending.
“The conduct of USC, the Pac-12 Conference and the NCAA, as joint employers, deprives their players of their statutory right to organize and to join together to improve their working and playing conditions if they wish to do so,” Abruzzo said at the time.
The truth is that amateurism in college sports — indeed, the very concept of the student-athlete — has always been clothed in the rosy glow of myth. The meet generally regarded as the first intercollegiate athletic contest, the 1852 Harvard-Yale boat race on Lake Winnipesaukee in New Hampshire, was openly a profit-making event, sponsored by a railroad magnate conniving to gin up tourist interest in the lake and its environs.
In that era, collegiate football was a commercial enterprise employing athletes for pay — “‘tramp athletes’ who ‘roamed the country making cameo athletic appearances’ for pay,” as Justice Neil M. Gorsuch wrote in the 2021 Supreme Court opinion. That system prevailed until 1905, when 18 fatalities on the college gridiron provoked President Theodore Roosevelt to force Harvard, Yale and Princeton to codify rules aimed at protecting players from injury.
Roosevelt’s initiative gave birth to the NCAA. As one of its first acts, the NCAA outlawed payments, direct or indirect, to players, thereby defining players as amateurs. The NCAA rode that concept hard for more than a century. Its lawyers coined the term “student-athlete” in the 1950s, but since under-the-table payments still existed it was offered with a cynical wink.
The NCAA is trying to hold back the tide on two fronts. In its appeal of Wilken’s latest ruling, it is arguing that the judge was wrong to certify the three classes of plaintiffs. College players don’t have the common characteristics needed for a class action, the NCAA asserts; nor would it be fair to apportion, say, revenues from a TV deal evenly among all players on a team.
“The value of NIL is inherently tied to each athlete’s unique status and characteristics,” it told the appeals court. “A star quarterback can plainly command more money for the use of his image on the cover of a video game than an unheard-of, backup offensive lineman.”
The NCAA’s second front is on Capitol Hill. The association has been trying to persuade Congress to step in. In an appearance Oct. 17 before the Senate Judiciary Committee, the NCAA’s Baker asked the lawmakers to overrule state laws in 30 states governing NIL payment rights by enacting a federal law.
More tellingly, Baker asked the senators to enact a law affirming that “student-athletes … are not employees of an institution” — in other words, to overturn the NLRB’s doctrine in a way that would stifle the earning rights of most players and eliminate such threats as unionization.
“College sports are a uniquely powerful and beloved institution,” Baker said.
How often have we heard this before? It’s a rare industry that doesn’t come to Capitol Hill pleading that it’s so special that it deserves a tailor-made system of laws and regulations. Baker may claim that his industry is unique, but he sounds exactly like every other business leader looking for a legal bailout.
The NCAA is trapped in a morass of its own making. Its century-old business model has come face to face with 21st century realities, and it needs to deal with the world as it is, instead of trying to keep living in a world of its own.
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