Should college athletes be recognized as “employees” within the meaning of the National Labor Relations Act (NLRA)?

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By: Samuel Thorp, Guest Contributor May 14, 2014

 Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the summer.

 Earlier this year, Kain Colter, a pre-med student and the starting quarterback at Northwestern University, joined the majority of his football teammates in petitioning the National Labor Relations Board (NLRB) for the right to form a labor union.

Colter and his teammates’ demands espouse concerns regarding academic and health issues facing college athletes. While there is a financial incentive for the petition, most important in Colter’s push for unionization are better health benefits, better treatment of concussions, and future medical treatment.

The National Collegiate Athletic Association (NCAA) adopted the term “student-athlete” more than fifty years ago in response to an increasing fear that that courts might recognize college athletes as employees. In 1953, the Supreme Court of Colorado ruled in University of Denver v. Nemeth that a University of Denver football player was an employee within the meaning of the state’s workers’ compensation statute. Ten years later, the California Second District Court of Appeal held in Van Horn v. Industrial Accident Commission that a deceased scholarship athlete was eligible for benefits as a result of having “participated in the college football program under a contract of employment with the college.”

 Compensation for college athletes, when considered in light of the labor that they provide for an increasingly profitable industry, is grossly inadequate.

Since its adoption of “student-athlete,” the NCAA has faired well in both workers’ compensation cases and in the antitrust context.  Courts at the state and federal levels have consistently held that athletes are not market participants (PDF) because they are student-athletes. This classification has proven to be remarkably profitable for the NCAA and its member schools. However, the term’s inherent characterization misrepresents the legal reality that athletes are actually employees.

Compensation for college athletes is grossly inadequate when considered in light of the labor that they provide for an increasingly profitable industry. While the value of an athletic scholarship is substantial, these funds oftentimes fail to cover even basic expenses. A recent study (PDF) found that the “scholarship shortfall”—the gap between a full NCAA scholarship and the actual cost of attendance—can be as much as $6,000 per year.

 By creating the term “student-athlete” and force-feeding it into the fabric of college athletics, the NCAA and its member schools have been able to profit at the expense of young men and women who labor for them, all the while avoiding the inevitable responsibilities and liabilities that would result from recognizing them as employees.

Additionally, there is a marked difference between the everyday lives of a college athlete and a normal college student. College athletes’ schedules are highly rigorous and regimented. A 2010 NCAA study (PDF) found an average football player’s in-season time commitment to football to be approximately forty-three hours. Athletes are similarly encumbered (PDF) during the off-season by mandatory conditioning, weightlifting, film-review, meetings and practices. The practical and time demands placed on college athletes offer them little to no choice but to become athletes first and students second.

By creating the term “student-athlete” and force-feeding it into the fabric of college athletics, the NCAA and its member schools have been able to profit at the expense of young men and women who labor for them, all the while avoiding the inevitable responsibilities and liabilities that would result from recognizing them as employees.

Unfortunately for Colter and his teammates, however, a determination of their employment status is not easily made.

 According to a 2001 estimate, college athletics is a $60 billion dollar industry.

Two tests are relevant in determining the meaning of the term “employee” under the National Labor Relations Act (NLRA): the common law “right of control” test and the statutory “primary purpose” test. According to the “right of control” test, “an employee is a person who performs services for another under a contract for hire, subject to the other’s control or right of control, and in return for payment.” The most important factor is the degree of control the alleged employer exercises over the working life of the alleged employee.

College athletes would likely meet the basic requirements of the NLRB’s right of control test. First, they clearly perform services from which the NCAA and its schools benefit.  According to a 2001 estimate, college athletics is a $60 billion dollar industry. Second, NCAA bylaws give colleges and universities wide latitude in their control over college athletes. While practice and competition demands are evidence enough, additionally “College athletes are closely monitored in terms of what substances they should (protein, supplements, creatine) and should not (alcohol) consume; how they spend their free time and, per NCAA regulations, how they may benefit from their labor outside of sports.”  Third, payment for athletes’ services consists of tuition, room and board, and stipends.  These payments constitute valuable consideration for services rendered, thereby satisfying the final requirement of the right of control test.

 Scholarships, grants-in-aid, and stipends are not payment for work analogous to that which is received in a traditional employment relationship.

Conversely, the primary purpose test is much less favorable to college athletes’ potential recognition as employees. In a 2004 ruling that graduate teaching assistants at Brown University were primarily students, and therefore not employees, the NLRB used the primary purpose test to analyze the facts according to four categories: (1) the teaching assistants’ student status; (2) the role of their positions in graduate education; (3) the assistants’ faculty relationships; and (4) the financial support they received.

Whereas all of the factors in the right of control test cut in favor of college athletes, many of the factors in the primary purpose test do not.  The first factor creates a presumption against recognizing an employment relationship when enrollment is an eligibility requirement for a job.  The form of college athletes’ compensation similarly disfavors a finding of employment. However scholarships, grants-in-aid, and stipends are not payment for work analogous to that which is received in a traditional employment relationship.

Somewhat surprisingly, on March 26, 2014, Chicago NLRB Regional Director Peter Sung Ohr ruled that the Northwestern football players qualify as university employees. He cited the players’ time commitment to football and the fact that their scholarships were directly tied to their athletic performance as reasons for granting them union rights. Evincing his reliance on the right of control test, Ohr ruled that Colter and his teammates “fall squarely within the NLRA’s broad definition of ‘employee’ when one considers the common law definition of ‘employee.’”

 American labor law should provide college athletes with the means to collectively improve their labor conditions.

Northwestern University plans to appeal the regional decision to the full NLRB in Washington, D.C., and it is difficult to determine which test the full NLRB will favor.  Even if the players were to win, the NLRB would be unable to recognize the majority of college athletes as employees because it lacks jurisdiction over public universities.  Nonetheless,many state statutes governing public employer-employee relationships are modeled after the NLRB’s interpretations of the NLRA. Thus, a well-articulated and favorable ruling for athletes at private universities may also create some limited gains for athletes at public universities in the long run.

There may also be other avenues by which all college athletes could successfully unionize. A specific NLRA statutory exemption leaves the majority of public employees’ collective bargaining rights in the hands of state lawmakers. Therefore one option may be to petition state labor boards, many of which have recognized that services provided by student-employees can constitute a form of work. Additionally, college athletes could seek payment under the Fair Labor Standards Act. Successfully arguing for a fair wage could bolster college athletes’ collective claim as employees under the primary purpose test.

 Regardless of the framework utilized, American labor law should provide college athletes with the means to collectively improve their labor conditions.  College athletes, by any fair estimate, are students and workers, and they should at least be entitled to basic labor protections commensurate with the labor they provide the NCAA and its member schools.

Samuel Thorp is a rising 3L at Campbell Law School. Sam can be reached via email at sh*********@em***.edu.