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Players Need for Protection or a Piece of the Pie

By Zachary Nastro

The treatment of college athletes by the NCAA has been a contentious topic for fans, students, universities, and now the National Labor Relations Board (NLRB). The NCAA rakes in billions of dollars in revenue, while the athletes are compensated through conditional athletic scholarships. Last March, the NCAA men's basketball Final Four brought in $198.5 million in advertising revenue, which is eclipsed by the $10 billion contract CBS and Turner Sports signed for the broadcasting rights until 2024. http://money.msn.com/top-stocks/post--march-madness-is-the-new-super-bowl. This fiscal oil well is contingent on one crucial factor, the athletes' performance. If the athletes do not perform, the NCAA money machine ceases to exist. In light of this well-known dependent relationship, shouldn't these student athletes be entitled to more than the scholarships that are currently distributed? The Northwestern Wildcats Football program seems to think so. The College Athletes Players Association (CAPA), on behalf of the football players at Northwestern, challenged the athletes' status in an effort to establish their role as employees of the university.

Northwestern football players petitioned the NLRB so that CAPA may represent them in their effort to evince their "employee" status under the National Labor Relations Act (NLRA). The court adopted the common law definition, which defines employee as a person whom under contract and control of an individual performs a service in return for compensation. William B. Gould IV et. al., Full Court Press: Northwestern University, A New Challenge to the NCAA, 35 Loy. L.A. Ent. L. Rev. 1, 30 (2014). The athletes demonstrated how their payment derived from their athletic scholarship awards. Of the 112 members of the Northwestern football team, 85 of them are on scholarship for approximately $61,000 per academic year. Id. Put another way, the university spends over $5 million dollars each year on scholarships. The court noted that these scholarships are awarded after considering the athlete's football abilities and not the individuals' academic performance. Id. This point is furthered by the fact that these players' scholarships can be cancelled if the player fails to perform, suffers injury, engages in any restricted activity, or anything else that may prevent the athlete from participating on the field. Moreover, this exchange of value for service establishes the employer-employee relationship. Id.

Next, the players moved to demonstrate their employment by showing how they are subject to the control of the university. Id at 31. Once the athletes commit to Northwestern's football program, they are immediately exposed to a myriad of rules and regulations. For instance, players must be pre-approved by the athletic department before they can seek outside employment; players must live on campus for their first two years; players are regularly tested for drugs and alcohol; there is a strict dress code players are required to follow; and players are also expected to participate in a certain amount of hours in conditioning and game preparation outside of scheduled practice. Id. On average, players are expected to dedicate 45 hours a week to football related activities. Id. In other words, this "extra-curricular" commitment is equivalent in time to a full time job with overtime. Thus, the requisite level of control to fit the common law definition of "employee" has been established.

The university responded by arguing that the athletes were comparable to graduate assistants as decided in the 2004 Brown University dispute. http://www.aaup.org/brief/northwestern-university-and-college-athletes-players-association-capa-case-no-13-rc-121359. That case held that teaching assistants are not employees, instead are more closely associated with the educational institution. Gould, supra at 32. Therefore, the NLRB made a distinction between graduates who possessed a direct connection with the university and athletes who were subject to the control of non-academic university employers. Id. After considering the facts, the NLRB decided that it is permissible for football players awarded scholarships to be represented by the CAPA and negotiate in collective bargaining with the university. Id. The players could use collective bargaining as a way to improve their schedules, gain outside employment, and eventually argue for additional monetary compensation.

The NLRB's decision now begs the question of whether the ruling was the "right" move. Experts have mixed views on whether allowing scholarship athletes in private universities to unionize will see positive results. With an employee relationship established and scholarships viewed as compensation, how will taxes work for these players? The IRS will certainly hold an interest in the millions of dollars in scholarships distributed to incoming athletes every year. It is also likely that taxation on players' scholarship awards will affect the amount of money school are willing to award players. 21 No. 2 Miss. Emp. L. Letter 1. When considering taxes, the question of whether the players will be entitled to workers compensation is also at issue. Id. Furthermore, Title IX requires equal treatment among male and female athletes. Id. Thus, if Northwestern allows its football players to negotiate for benefits through collective bargaining, then female athletes must be provided the same opportunities at an unknown cost. Id. With all these unanswered questions following the NLRB's decision, the future treatment of college athletes remains uncertain. One resolution to this conflict that has been gaining popularity involves the university instituting a trust fund for athletes that can be procured upon their graduation. The trust fund could comprise of revenue percentages generated by television, radio, licensing contracts, as well as other royalties from advertisements and other forms of compensation that players may have been entitled to otherwise. http://www.usnews.com/debate-club/should-ncaa-athletes-be-paid/ncaa-amateurism-is-an-illusion. This compromise will protect the players and the sanctity of college athletics.

It is apparent that some larger degree of reform within the NCAA will stem out of the NLRB's recent decision. However, this reform needs to be approached prudently, and all potential ripples must be considered to avoid a complete deconstruction of the NCAA. Innovative ideas such as setting up trust funds for the athletes can serve all interested parties and aid in mending the disconnect between the players and their institutions.

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This page contains a single entry from the blog posted on March 16, 2015 5:20 PM.

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