Is Student-Athlete a Misnomer for University Employee? | DCR Workforce Blog

Is Student-Athlete a Misnomer for University Employee?

AthleticsOn Dec 13th, the National Collegiate Athletic Association said in a court filing that the protection of college athletes isn’t its legal responsibility.   Athletes at Northwestern University had applied to the National Labor Relations Board (NLRB) for permission to join the United Steelworkers union to gain collective bargaining rights, through the National College Players Association. “We figured athletes were lucky because they’re getting an education,” said United Steelworkers president Leo Gerard “But then we looked into it and realized it’s a myth. Many don’t get a true education and their scholarships aren’t guaranteed.”

What most people seem to have missed is that this has more than one precedent:

  • The University of California, where graduate students are also instructors, has seen them enjoy a dual relationship as students as well as employees.  They unionized to bargain for better salaries, benefits and working conditions. Today, there are more than 12,000 readers, tutors, teaching assistants and research assistants throughout the University of California who are members of a UAW local 2865.
  • In 1953 Colorado Supreme Court ruling upheld a determination that a University of Denver football player was an “employee” covered by the state’s worker’s compensation law.
  • As of 2007 there were 28 graduate student employee local unions in the United States and 21 local unions in Canada.

Universities have always encouraged students with athletic prowess to play amateur sports and provided them with aid in the form of tuition, room, board and books, and payment of other fees charged by the university. The universities and the NCAA earn million dollar fees in the form of television rights, sponsorships, ticket sales, merchandise purchases, championship payouts and even video games.  In addition, universities with strong athletic programs enjoy high levels of alumni donations, often slotted for new stadiums and other athletic programs. College athletics is estimated to be a $16 billion industry – far in excess of the expenditures on athletic scholarships or programs. The universities do not compensate an injured athlete, often take away scholarships from injured athletes and do not  provide injury care to them once they graduate or leave the school. Most student-athletes end up with no compensation for sports-related injuries.

The NCAA has clearly stated that a student-athlete cannot be considered an employee of the institution where he/she is enrolled. They are considered ‘volunteers’ who do get some benefits like scholarships and living expenses. But there is little doubt that the relationship and its structure bring up a lot of questions:

  • In determining whether a student athlete is an employee of the university, the NLRB will begin with the “right to control” test.  The NLRB considers the degree of control an employer has over how an alleged employee performs his work.  The NLRB considers the level of skill required to perform the job, who provides the tools needed to do the job, the duration of the relationship, and the extent of the employer’s control over when and how to work.  Not every factor must be met to be deemed an employee.  Perhaps the factor of greatest consideration will be whether the relationship is considered to be primarily educational or primarily economic in nature. When the NLRB ruled that the graduate students of Brown University are not employees; it also stated that research may be construed as a part of academic pursuit while other paid services which establish a relationship of a commercial nature with a university will create an employer-employee relationship. Can a student-athlete be classified as an employee under that definition if their scholarship stipulates that it is tied to ongoing participation in a specified athletic program?  Is the scholarship equivalent to income?
  • In considering the level of control, the NLRB will examine control exerted by the NCAA, the university, and the coaching staff.   Athletes are forbidden to accept gifts of any kind, and prohibited from commoditizing their names or pictures for any kind of monetary gain.  However, the NCAA and Universities reserves the rights to do so. Coaches dictate practice hours, require students to miss classes to attend team-related events, require athletes to wear apparel provided by companies they have contracted with, and – in some cases – must approve requests from students to transfer to another university.  This level of control is viewed by many as indicative of an employer/employee relationship.

If the NLRB rules that student athletes are university employees, we can expect those at Northwestern University to quickly unionize, and others will follow. The university accepted that the health and injury compensation issues raised by the students were genuine and need to be resolved. The fact that they are not yet resolved argues strongly in favor of winning collective bargaining rights for these student-athletes.  The petition to NLRB secured more than the 30% signatures required from the team.  Actually, an overwhelming majority signed the request.

The stakes are high and the NCAA cannot be expected to relinquish its position or accept a change in the status quo easily. When challenged by players like Ed O’Bannon who questioned the right of the NCAA and EA to use their images in video games, EA offered $40 million in compensation.  The NCAA, however, has chosen to continue fighting the issue in the courts. After all, having your team of players unionize and earn the right to go on strike – after all the tickets and television rights have been sold – is a calamity which no one would want to contemplate or face!

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.