College Football Players as Employees?

634448_54365766In 1950, Ernest Nemeth played football for the University of Denver and worked toward a degree in business administration.  After being hurt in a spring practice, Nemeth filed for workers compensation.  The school protested after the state Industrial Commission ruled that Nemeth was an employee of the school. Eventually, in 1953, the Colorado Supreme Court ruled that the Industrial Commission was correct, at least where workers compensation law was concerned.*  More than 60 years later, college athletes are still looking to be recognized as university employees.

On April 25, Northwestern University’s football players voted on whether to form a union, though the outcome of the election won’t be know for a while.  The National Labor Relations Board has agreed to review the decision of the regional NLRB granting college athletes collective bargaining rights and the vote will be sealed pending the outcome of the appeal.

In the March ruling, the NLRB said that athletic scholarships are for the services performed for the employers, making them employees.  In many ways, scholarship athletes have legitimate complaints.  One study suggests that players at the University of Texas live below the poverty line by $784 per year, while the fair-market value of that player’s services are $567,922.

Some of the things athletes are looking for make sense, especially extended medical care after their playing days are over.  College athletes play games that can destroy their heads and bodies, so looking after them in the future is a reasonable request.

But, at least in many of the top programs, athletes are guaranteed four years of college tuition, plus room and board. A “free” ride at a good university, or even a decent one, is something that many kids can only dream of.

So the big picture is a bit out of focus. Both sides of the argument have good points.  But if college athletes are finally ruled to be employees, there are a host of questions to be answered:

  • Are athletes covered by minimum-wage laws?
  • Are the athletes entitled to overtime wages after 40 hours?
  • If they are entitled to overtime wages, how much should they receive for overtime?
  • How, exactly, will their wages be calculated?
  • Should athletes share in media revenues?
  • Should athletes have to pay income taxes on their scholarships?
  • Are the athletes eligible for workers compensation for their work-related injuries?
  • And if they are entitled to workers comp, how will compensation payments be calculated?
  • Will non-scholarship athletes be covered under the union contract?
  • Will all sports that grant scholarships be covered under the contract?
  • What affect would collective bargaining have on a university that has to follow NCAA rules?
  • Does Title IX require colleges to pay the female athletes the same amounts?
  • Will athletes at public schools be considered to be state employees and eligible for pensions?
  • Would each athletes at public schools in states that prohibit collective bargaining by state employees be responsible for negotiating their own deal with a school?

The last point is particularly sticky. States such as Illinois, which allows collective bargaining rights for public employees, could end up with an advantage with recruiting over states like Ohio, which bans the unionization of public employees. A college athlete union could bargain for, and receive, great benefits, something a prospect would have to consider before choosing where to sign.

According to the schools, everything is fine the way it is. Some players, and many others, think differently. Changes are slowly coming to college athletics, and regardless of the NLRB’s final decision, and the court cases surely to follow, major changes are likely to continue.

 * After that, according to a Washington Law Review Association paper from 2006, the NCAA began a campaign against considering athletes employees of the colleges and universities they attended. The paper quotes Walter Byers, executive director of the NCAA from 1951 to 1988: The “threat was the dreaded notion that NCAA athletes could be identified as employees by state industrial commissions and the courts. (To address that threat, we) crafted the term ‘student-athlete,’ and soon it was embedded in all NCAA rules and interpretations as a mandated substitute for such words as ‘players’ and ‘athletes.’”  George Orwell probably shifted uneasily in his grave.