Are Student-Athletes Really Employees?

Summer is upon us, and while most college students have ventured back home, a great debate rages on at the schools and universities they have left behind. Most college students, and even alumni, are unknowing or uninterested participants in the debate; yet the final decision could affect them directly.

The question at the core of the debate: Are student-athletes employees of their schools?

The knee-jerk response to this question is “of course not,” but the consideration is complicated and causing a growing rift between those on either side of the issue.

In March of this year, Peter Sung Ohr, the Regional Director of the National Labor Relations Board (“NLRB”) based out of Chicago, entered an opinion finding that the Northwestern University football players who had petitioned the NLRB on this very issue were, in fact, employees of the University. An “employee,” as defined in the NLRB’s decision via reliance on common law, is someone who performs services for another pursuant to a contract for hire, who is subject to the other’s control, and who receives payment.

In the 24-page decision finding that the athletes were employees the regional NLRB office considered things such as receipt by the athletes of a stipend for living expenses, application of special rules to the athletes (including social media limitations), restrictions on the athletes’ abilities to work outside jobs, time commitment to their sports, and the University’s control of the athletes’ images and likenesses for licensing purposes. The NLRB also considered the athletes’ argument that the time committed to their sports limited their opportunities to pursue their academic interests. Indeed, one of the Northwestern athletes claimed he was unable to take classes pursuant to his desired pre-med major due to athletic scheduling restrictions. These arguments, particularly the limited academic opportunities, weighed heavily against the University’s position that the students received an education in exchange for their participation in sports.

The NLRB’s decision provided the first step for the Northwestern athletes to unionize. In April, the athletes requested that the NLRB in Washington, D.C. review the decision of the regional office and determine whether to approve it. In the meantime, the athletes participated in a vote on whether to unionize, the results of which will only be revealed if the D.C. office approves the March decision of the Chicago office NLRB..

While the Northwestern athletes revel in their victory, which may or may not be fleeting, those opposed to the unionization continue to voice their concerns. Those opposing the decision argue that athletes are students first and athletes second; though the Northwestern athletes offered somewhat convincing evidence that they are restricted academically because they have to plan their classes around practice schedules. Northwestern also argues that converting the student-athlete to an employee-athlete would create what it considers to be an “adversarial employer-employee relationship” (admittedly, the employment lawyer in me cringed upon reading that).

Coincidentally, while the NLRB considers whether Northwestern athletes are employees, articles such as this one from the Bleacher Report, circulate the Internet, showing the immaculate facilities the student-athletes use while at “work.”

So what is at stake if college athletes are allowed to unionize? Primarily, the billions of dollars in revenue generated by college athletic programs. Those billions of dollars work for and against the argument for unionization. Those for athletes’ unionization argue that the athletes, particularly in big-money sports such as football and basketball, are the key component to the revenue stream. College athletes sign away their rights to their likenesses, allowing their schools to plaster their names and faces on jerseys, t-shirts, billboards, and other memorabilia. The rules of the college athletics governing body, the National Collegiate Athletic Association (“NCAA”), prohibit student-athletes from profiting from their time as college athletes. Numerous and often daunting restrictions are in place to ensure that the athletes focus on academics and athletics, not on becoming rich or famous.

Opponents to athlete unionization point out that permitting unionization would essentially give the student-athletes unprecedented access to the revenue stream, which funds not only the lucrative athletic programs, but also funds those less lucrative programs and the schools overall. If unionized, student-athletes could demand a share of the profits and strike to renegotiate their agreements (think NHL lockout 2012), thereby cutting off money to the school and potentially eliminating jobs for those who work in the facilities. Ultimately, students who are not athletes may feel the effects by way of even more increases in tuition, potentially without the benefit of a weekend football game to relieve some stress and promote school spirit and socialization.

If the main concern centers around access to this massive revenue stream, then perhaps the issue is not whether the student-athletes deserve a piece of the pie as union members, but how the pie is made. Rather than revamp the student-athlete structure, should the focus be on revamping the athletic system and the ways in which schools generate income from athletics? Maybe it’s time for the schools to consider whether they really are permitting the athletes to put academics first.

It may be undeniable that the system is broken, but in what way? Is it appropriate for student-athletes, many of whom are 18, 19, or 20 years old, to be investing their energy in protecting their “brand”? The student-athletes argue that they don’t have the ability to pursue their academic interests. Yet the benefit of unionizing, though shrouded in the academics argument, appears to be the ability of the athletes to claim their stake in the empire.

With Northwestern University and the 1,800-member American Council on Education recently weighing in against the unionization, the NLRB’s final decision on the matter remains to be seen. Whatever the decision, this is only the beginning of what will surely be a years-long debate.

Contact McDonnell & Associates to schedule a consultation regarding any of these employment litigation, personal injury or civil litigation defense issues.

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