Collegiate Athletes: Students, Staff, or Somewhere in the Middle?
Drew Chlan*
Are American college athletes, students, employees, or a combination of the two? The National Collegiate Athletic Association (NCAA), the governing body of American collegiate athletic teams, strongly emphasizes a student-athlete remaining an amateur. See NCAA, 2009-10 NCAA Division I Manual (2009), http://www.ncaapublications.com/productdownloads/D110.pdf. The NCAA states in its bylaws that a student-athlete is:
[N]ot eligible for participation in a sport if after full-time collegiate enrollment [the student has] ever:
- Taken pay, or the promise of pay, for competing in that sport;
- Agreed (orally or in writing) to compete in professional athletics in that sport;
- Competed on any professional athletics team (as defined by the NCAA) in that sport; or
- Used your athletics skill for pay in any form in that sport. (Prior to collegiate enrollment, an individual may accept prize money based only on his or her place finish or performance from the sponsor of an open athletics event, the United States Olympic Committee or the appropriate national governing body and actual and necessary expenses associated with the individual’s practice and competition on a professional team.)
Id. § l2.1.3., .5. While the NCAA’s adherence to an amateur student-athlete model may be based on altruistic notions of uncompensated, academically successful athletes remaining a part of a college’s diverse fabric, a change in status from student-athletes to employees would require the financial reconstruction of collegiate athletics and collegiate budgets. See, e.g., Karl Borden, College Football Players Deserve a Share of the Spoils, Wall St. J. (Jan. 23, 2014), http://www.wsj.com/articles/SB10001424052702303848104579308401524906962 (proposing that colleges contribute 25% of gross football revenues to a trust fund authorized to make post-eligibility payments to players); Joe Nocera, Let’s Start Paying College Athletes, N.Y. Times (Dec. 30, 2011), http://www.nytimes.com/2012/01/01/magazine/lets-start-paying-college-athletes.html (proposing minimum salaries of $25,000/year for players). As the NCAA and its respective conferences continue to receive record-shattering amounts of revenue each year, the concept of amateur student-athletes has routinely been criticized.
While NCAA student-athletes are not allowed payment for participation in their colleges’ athletic contests, the NCAA, its conferences, and the individual schools have greatly benefited from successful athletic teams. For example, in 2011, the NCAA received $711 million from the television contract for its Division I Men’s Championship tournament and $125 million from its television contract for its Football Bowl Championship Series. Steve Weiberg, NCAA President: Time to Discuss Players Getting Sliver of Revenue Pie, USA Today (Mar. 29, 2011), http://www.usatoday.com/sports/college/mensbasketball/2011-03-29-ncaa-pay-for-play-final-four_N.htm; Michael Smith, TV Fee Boosts BCS Payout 22 Percent, Sports Bus. J.
(Jan. 24, 2011), http://www.sportsbusinessdaily.com/Journal/Issues/2011/01/20110124/Colleges/BCS-payout.aspx.
While the NCAA has remained steadfast in its adherence to an amateur student-athlete model, this standard has come under fire for a myriad of reasons. NCAA bylaws have resulted in the punishment of student-athletes for relatively innocuous financial infringements. These infractions have included a player taking a small loan from a former coach and coach paying for pizza while he and his players discussed the upcoming game. Mark Viera & Pete Thamel, Baylor Star, A Top N.B.A. Prospect, is Suspended, N.Y. Times (Mar. 9, 2011), http://www.nytimes.com/2011/03/10/sports/ncaabasketball/10hoops.html?_r=0; Robyn Norwood, Utah Is Penalized for Rules Violations, L.A. Times (July 31, 2003), http://articles.latimes.com/2003/jul/31/sports/sp-utah31.
The most prominent example of college student-athletes organizing in an attempt to change the NCAA’s status quo pertaining to amateur status is the case of Kain Colter. Colter, a former Northwestern University football player, filed a petition with the National Labor Relations Board (Board) in hopes of recognizing the College Athletes Players Association (CAPA) as representative of players on Northwestern’s football team. Northwestern Univ., No. 13-RC-121359 (N.L.R.B. Jan. 28, 2014), http://www.employerlaborrelations.com/files/2014/02/Northwestern-RC-petition1.pdf (petition). While Colter won the first battle, with the Board’s director finding that players were employees, his petition and others like it are only the start to an expectedly contentious, drawn-out process. Northwestern Univ., No. 13-RC-121359, 2014 WL 1246914 (N.L.R.B. Mar. 26, 2014) (decision finding that players receiving scholarships are employees and ordering election within the bargaining unit); Laura Wagner, Court Rules Against Paying College Athletes, Nat’l Pub. Radio (Sept. 30, 2015, 4:39 PM), http://www.npr.org/sections/thetwo-way/2015/09/30/444771179/court-rules-against-paying-college-athletes.
While the recent decisions pertaining to college student-athletes have not been favorable toward the students, there are myriad avenues that student-athletes may be able to bring their “employee” claims, such as through collective bargaining laws or the Fair Labor Standards Act. Perhaps an injured player could seek compensation through a state workers’ compensation statute. Sec’y of Labor v. Lauritzen, 835 F.2d 1529, 1543–44 (7th Cir. 1987) (Easterbrook, J., concurring) (arguing that the purposes of the Fair Labor Standards Act should drive the definition of “employee”); Arthur Larson & Lex K. Larson, 1 Larson’s Workers’ Compensation Law § 125.02 (2014 ed.) (providing an overview of how different states govern workers’ compensation disputes); Clyde W. Summers, Labor Law as the Century Turns: A Changing of the Guard, 67 Neb. L. Rev. 7, 9–11 (1988). While college student-athletes may not at first be successful in their goal of obtaining compensation for their athletic output, it appears as though student-athletes’ options for legal recourse are plentiful. This legal reality, combined with the NCAA’s exponential annual profiteering and archaic punishment system, indicates that public pressure on the NCAA will only continue to rise. With the NCAA seemingly unable to fathom compromising their amateur student-athlete model, the courts will have the final opportunity to settle the student-athlete employee issue. While we wait for a court’s decision, one thing is clear: the discourse and perspective surrounding college athletics and finances has been forever altered.
*Drew Chlan is a second year law student at the University of Baltimore School of Law. Drew presently interns with Judge Nickerson of the United States District Court for the District of Maryland and will be working for Venable LLP as a Summer Associate in Summer 2016. He was recently named Editor in Chief for the University of Baltimore Law Review Volume 46.
University of Baltimore Law Review 