PF Dec 2017 - NCAA Athletes As Employees - Con Position

Resolved: NCAA student athletes ought to be recognized as employees under the Fair Labor Standards Act.

Con Position

Con stands in opposition of recognizing NCAA student athletes as employees under the FLSA. In taking that position, Con must acknowledge that the NCAA and member schools are generating billions of dollars while student-athletes are not sharing in the overflow, if indeed there is an overflow. Even if Con completely agrees the amount of money generated by college athletics, at least Division I football and basketball, is somehow, extraordinary or obscene given their mission to provide student education, we can claim the ethics or principles involved are another debate for another day. What this debate is about, is the status of the student athletes themselves and we must be mindful of the fact that not every school partnered with the NCAA is a Division I school and not every sport enjoyed by student participants is capable of generating profitable revenues. There are literally thousands of student athletes of all types who do what they do completely outside of the spotlight.

Extracurricular Activities

The U.S. Department of Labor allows schools to require a variety of activities, including athletics. These activities are provided for the benefit of students, not the school, and are aimed toward supplementing the educational experience.

Morran 2016:

Chapter 10 of the Department of Labor’s Field Operations Handbook explains that schools may permit or require students to engage in activities in connection with dramatics, student publications, glee clubs, bands, choirs, debating teams, radio stations, intramural and interscholastic athletics… Activities of students in such programs, conducted primarily for the benefit of the participants as a part of the educational opportunities provided to the students by the school or institution, are not work” as contemplated under the FSLA [sic] and “do not result in an employer-employee relationship between the student and the school.”

These extracurricular activities are not classified as work. Moreover, college athletes in general have long participated in intercollegiate sports fully aware of their "amateur" status.

Morran 2016:

“Because NCAA-regulated sports are ‘extracurricular,’ ‘interscholastic athletic’ activities, we do not believe that the Department of Labor intended the FLSA to apply to student athletes,” explains the Seventh Circuit. “Appellants in this case have not, and quite frankly cannot, allege that the activities they pursued as student athletes qualify as ‘work’ sufficient to trigger the minimum wage requirements of the FLSA. Student participation in collegiate athletics is entirely voluntary. Moreover, the long tradition of amateurism in college sports, by definition, shows that student athletes—like all amateur athletes—participate in their sports for reasons wholly unrelated to immediate compensation.”

The Amateur Tradition

Competing with amateur status has never historically been a deterrent to participation in these activities. So the argument the NCAA devised the language of their policies so as to avoid paying student athletes is flawed. Participants have willingly and happily engaged in NCAA sanctioned events despite the fact they are not compensated materially and colleges have encouraged participation even in programs which ultimately lose money. Given these facts, the tradition of amateurism has been a major consideration in court cases.

Epstein & Anderson 2016:

The collegiate model of NCAA level sports is grounded on the NCAA’s Fundamental Policy that “intercollegiate athletics [is]. . .an integral part of the educational program and the athlete [is]. . an integral part of the student body and, by doing so, retain a clear line of demarcation between intercollegiate athletics and professional sports.” Within this collegiate model, student-athletes are considered to be amateurs, and as such can only receive grants-in-aid (i.e., athletic scholarships) to help pay for their college education while competing in college sports. If student-athletes are paid to play, they are no longer amateurs under NCAA rules and are ineligible to compete in varsity athletic competition.
This notion of amateurism has come to be known as the amateurism defense supported by courts in challenges to the NCAA and its bylaws, in many ways starting back in 1984 when the United States Supreme Court said that in order to maintain collegiate athletics, “athletes must not be paid.” [287-288]

The courts have established precedent in previous rulings upholding and defending the amateur tradition of college sports. Moreover, that tradition expands to all types of intercollegiate sports.

Miller 2016:

Former members of the University of Pennsylvania’s women’s track team were not employees of the university under the FLSA, and so were not entitled to be paid minimum wage for their work performed as student athletes, ruled the Seventh Circuit in affirming dismissal of their claims. Applying the economic realities test, and taking into account the tradition of amateurism in college sports, and eligibility rules that define what it means to be a student-athlete, the appeals court concluded that student athletes participate in their sports for reasons wholly unrelated to immediate compensation. Student-athletic "play" is not "work," as that term is used in the FLSA (Berger v. National Collegiate Athletic Association, December 5, 2016, Kanne, M.).

Miller summarizes much of the legal framework surrounding the status of student-athletes and the factors which shape court decisions.

Miller 2016:

Amateur tradition. Accordingly, the Seventh Circuit agreed with the district court’s decision to follow the reasoning of Vanskike. The appeals court observed that there exists a tradition of amateurism in college sports, and that long-standing tradition defines the economic reality of the relationship between student athletes and their schools. The eligibility rules devised by the NCAA and its member institutions "define what it means to be an amateur or a student-athlete, and are therefore essential to the very existence of" collegiate athletics. The multifactor test does not take into account this tradition of amateurism or the reality of the student-athlete experience.

Student-athlete experience. A majority of courts have concluded that student athletes are not employees. Further, the Department of Labor, through its Field Operations Handbook (FOH), has also indicated that student athletes are not employees under the FLSA. The court rejected the students’ attempt to compare NCAA-regulated athletes to the work-study participants of §10b24(b) in the FOH. The court pointed out that Section 10b24(a) categorically states that students who participate in "extracurricular" activities are generally not considered employees. Moreover, Sec. 10b03(e) includes "interscholastic athletics" in a list of activities that do not constitute "work." Thus, the court found the FOH’s interpretation of the student-athlete experience to be persuasive.  

"Play" is not "work." Noting that student participation in collegiate athletics is entirely voluntary, the Seventh Circuit concluded that the plaintiffs in this case had not alleged that the activities they pursued as student athletes qualified as "work" sufficient to trigger the minimum wage requirements of the FLSA.

Scholarships Are Not Contracts

Often proponents of the  view that student athletes are employees will claim that athletes which receive scholarships are in fact entering into a contract. The scholarship, in that view, is a quid pro quo in which the athlete, in exchange for services on the field of play, will receive compensation covering tuition, housing and other possible expenses.

Corgan 2012:

In the 1983 case, Rensing v. Indiana State University Board of Trustees, the Indiana Supreme Court also concluded that an athletic scholarship is not the equivalent of an employment contract. The Court reasoned that the football player's scholarship was not contingent on his athletic play because the student maintained his scholarship despite injuries that inhibited him from performing. Moreover, the scholarship given to the student-athlete to play football did not constitute a method of payment, as the Internal Revenue Service ("IRS") did not require the student to report such benefits as gross income. The Court also noted that there is no distinction between athletic and academic scholarships. The university did not provide the student-athlete with a scholarship because of his "services" on the football field. Instead, universities give athletic and academic scholarships because of "past demonstrated ability in various areas" with the hope that such financial assistance will allow students to "pursue opportunities for higher education as well as to further progress in their own fields of endeavor. In other words, the contract between a student-athlete and a university is not an employment contract or a contract to render certain services, but rather a contract involving education. Thus, universities are not required to compensate student-athletes under workers' compensation.[404-405]

Con maintains that the awarding of scholarships actually confirms the primary interest of the relationship between the school and student is education. Otherwise, other kinds of arrangements would be more conducive to the activities of sport.

Challenging the NLRB

The National Labor Relations Board (NLRB) and the Fair Labor Standards Act (FLSA) serve different purposes and so each operates under a different set of standards and definitions. Just because the NLRB makes a determination that a group of individuals meet the definition of employees for the purpose of organizing under a bargaining unit (a labor union) it does not follow that the group will meet the definition of employees under the FLSA.

Leppler 2014:

“Division I athletic grant-in-aid students in college football and men’s basketball can be considered ‘employees’ under both the National Labor Relations Act and under most applicable state laws.” If a person is deemed an employee under the NLRA, those employees are granted the rights to gather amongst themselves and discuss their wages and working conditions even if they are not part of a union. However, the NLRA only applies to employees who work in most private sectors and specifically excludes protection to persons employed by Federal, state, or local government. The question of whether a particular person is an employee has been essential in the development of American labor law. The National Labor Relations Board (NLRB) and the judiciary have developed different legal standards in determining a person’s employee status. Thus, there are several approaches the NLRB or the judiciary can take in determining whether these particular student-athletes in Division I college football and basketball are legally employees. [82-83]

Within the jurisdiction of the NLRB, one may question the legitimacy of student athletes, even in Division I schools, as bona-fide employees since not all student athletes are participating under the same obligations. Obviously, team walk-ons, for example, are purely volunteers while those who signed a letter of intent and agreed to participate with a scholarship as compensation are functioning under different purposes. Consider the situation when Northwestern University players attempted to organize under a union. Even if the NLRB had agreed to the Northwestern group's claims, the effect on the team could have been divisive.

Shanley 2014:

The Northwestern solution of classifying the student-athletes as employees fails to take into consideration those student-athletes that cannot be classified as employees because they are not on scholarship. This divide in employment status creates multiple problems, both on and off of the field. Classifying only part of a given team as employees is likely to divide teammates, employees vs. non-employees.
Student-athletes that receive compensation are likely to perceive themselves as more important than their non-employee counterparts, causing a cleavage in the team. Athletic teams are notorious for acting as a surrogate family for collegiate athletes. In order to communicate effectively and play well together, teammates need to trust and respect each other on and off of the field. Dividing the team into classified groups risks destruction of this camaraderie, and could cost teams games and even championships.
A petitioned-for-unit is not appropriate if it fractures a unit. The Regional Director’s decision addresses this by suggesting that since the walk-on and non-scholarship student-athletes cannot be classified as employees under the common law definition, there is no fractured unit (of employees) present. A fractured unit exists when there is representation of only an arbitrary segment of a unit, and the excluded and included groups share an “overwhelming community of interest”. The Regional Director states that the difference in compensation is a substantial difference in the community of interest shared between the two groups; since the walk-on and non-scholarship student-athletes cannot be classified as employees, the Regional Director does not view them as part of the employee unit. [12-13]

It is interesting to note, the NLRB did not invent a definition of employee. It was imposed upon them by the U.S. Supreme Court.

Leppler 2014:

Since the Supreme Court decision in NLRB v. Town & Country, the NLRB has further relied on that decision in defining employee, as “[u]nder the common law . . . a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.” [88]

The courts seldom rely on verbal interpretations of words for legal standing since obviously there may be an element of subjectiveness between jurisdictions. Therefore, the court will usually establish one or more tests which must be met to assure compliance with a definition. One such test relevant to this topic is the common law 'right to control' standard which is met when the employer can tell the 'contractor' what, where and when to do something. Perhaps it seems obvious, the university coaches have that power. But, there are other necessary conditions to recognizing an employer-employee relationship utilized by the NLRB functioning under the National Labor relations Act (NLRA).

Leppler 2014:

The NLRB’s decision in Brown is currently the legal standard for determining whether a university student is a statutory employee. In that decision the NLRB majority acknowledged that the right to control standard must be satisfied as a general requirement. The NLRB further held that another specific requirement for students was that unless the relationship between the school and the student was “primarily economic,” rather than “primarily educational,” then the students were not employees. Therefore, when students’ efforts are predominantly educational and not economic, then those individuals are not employees within the meaning of the NLRA. From that test it logically follows that when a student who works for a university performs services that are not primarily educational or academic and the relationship to the university with respect to those services is an economic one, the student may be an employee under the NLRA, provided that he also meets the common law test for that term. [89-90]

Student Athletes have a primarily academic relation with the schools in which they perform. This is attested by the fact, that athletes who fail to maintain their academic good-standing will be suspended from playing and are at risk of losing their position on the team and their scholarships.

Support for the Status Quo

By rejecting the Pro contentions and voting for the Con, the judge can avoid a number of negative impacts. I will conclude this essay by presenting a number of cards supporting a small array of impact scenarios

Scenario 1: Kills Other Sports

Recognizing student athletes as employees will force schools to shut-down less profitable sports programs.

Shanley 2014:

Another concern the Northwestern University footballs players did not consider was the cost of classifying student-athletes as employees for their student-athlete peers in other sports and to the athletic program itself. Universities may discontinue funding losing teams that cost more money to run than bring in revenue, in order to shift focus and funds to high revenue teams. While this may mean great things for a top Division I football program generating millions for a university, this could also mean other sports are removed entirely from a schools athletic program in order to offset the cost of paying compensation to student-athletes. At Northwestern University the high revenues brought in through football are used to fund other non-revenue sports, provide for scholarships, and pay for facility maintenance, amongst other things. [15]

Corgan 2012:

Ultimately, the pay-for-play model has a number of serious practical and legal consequences that prevent it from being a viable alternative to the NCAA's current system. First, although a number of universities generate millions of dollars through football and basketball programs, schools utilize this revenue to fund other unprofitable sports. Consequently, although numerous schools would be able to afford to pay all student-athletes a monthly stipend, a large number of schools would be forced to cut other men's sports to even consider paying stipends to both men and women student-athletes that could total millions of dollars. While scholarship cuts could help schools solve their potential financial woes, this proposed financial solution would eliminate opportunities for male athletes in sports such as wrestling and baseball, which have already been drastically reduced by schools to remain in compliance with Title IX.[406-407]

Scenario 2: Violates Title IX

Schools which recognize players as employees are at risk of violating Title IX requirements intended to provide gender equity.

What is Title IX?

Shanley 2014:

Title IX – A 1972 law passed to require gender equity for boys and girls in every educational program that receives federal funding. With regard to intercollegiate athletics, Title IX increased women’s participation in sports, granted more scholarships to female student-athletes, and increased opportunity for competition at a higher level of athletics

What are the Implications?

Corgan 2012:

Title IX mandates that colleges and universities must provide female student-athletes with the same athletic opportunities as male athletes, and schools must give equal treatment to both men's and women's sports. Accordingly, providing male football and basketball players with stipends would probably constitute unequal treatment between male and female student-athletes. Thus, the pay-for-play model would create financial difficulties for a large number of college programs and leave college programs in noncompliance with Title IX if programs attempted to alleviate these financial woes. [407-408]

Corgan 2012:

To comply with Title IX standards, schools must meet one of three requirements stated in Cohen v. Brown University. First, schools may provide opportunities for athletics that are "substantially proportionate" to the gender demographic figures. Second, schools may demonstrate that they are continually striving for equal athletic opportunities between both genders. Third, schools may ensure that "the athletic interests and abilities of male and female students must be equally effectively accommodated." In short, colleges must provide female student-athletes with the same athletic opportunities as male athletes, and schools must give equal treatment to both men's and women's sports. Courts usually declare that a school has violated Title IX if the proportionality prong of the three-part test has not been met because schools, in most circumstances, would not be able to satisfy the other two prongs while failing the proportionality test. [383-384]

Shanley 2014:

From the Regional Director’s findings, the Northwestern University football program generated $30.1 million in revenue for the 2012-2013 season, yet also generated $21.7 million in expenses.37 The remaining $8.4 million is then used to maintain the stadium facility, as well as subsidize Northwestern University’s non-revenue raising sports. It is noted in the decision that the revenue used to subsidize the other sports ensures that there is a proportionate number of men’s and women’s varsity sports in compliance with Title IX of the Education Amendments of 1972.

Utilizing these funds as compensation for the student-athletes would not only reduce the funds available for the other programs, but could also cause universities to violate Title IX inadvertently. Men’s sports, specifically football and basketball, are the main sources of revenue for the majority of universities. Women’s basketball, although popular, most likely will not provide enough revenue in order to level the playing field among the breadwinners of collegiate sports. Re-allocation of revenue funds in order to compensate the employee student-athletes is thus an unworkable, and possibly unconstitutional, solution to this problem. [15-16]

Scenario 3: Harms Education

Voting Pro will have a negative impact on scholastics.

Shanley 2014:

Classifying the student-athletes as employees puts further emphasis on their athletic commitment by stating up front that their employment is for athletic, not scholastic, performance. Further, this classification, as previously mentioned, only applies to student-athletes receiving scholarship. While there will still be those who will participate for “the love of the game,” further alienating these walk-on or non-scholarship student-athletes runs the risk of deterring non-employee student-athletes from participating at all.
This employee classification additionally deters prospective student-athletes, regardless of scholarship status, who want to find a balance between academics and athletics by placing an emphasis, through monetary compensation, on the athletic portion of their commitment. The current rules additionally subject the student-athletes to academic performance standards. Failure to meet these academic obligations results in ineligibility to participate in athletics, and is a legitimate reason for the cancelling of scholarships. There has been no discussion how the current NCAA rules would apply to student-athlete employees, though it can be assumed that their employee status would not be revoked for poor academic performance, thus furthering the disconnect between student-athletes and their academic pursuits. [16-17]

For all these reason and so much more, we urge a Con ballot.

For more about this topic or Public Forum debate in general, click the Public Forum page tab for links to more topics and discussion.

Sources:

Corgan, MA (2012) Permitting Student-Athletes to Accept Endorsement Deals: A Solution to the Financial Corruption of College Athletics Created by Unethical Sports Agents and the NCAA's Revenue-Generating Scheme, 19 Jeffrey S. Moorad Sports L.J. 371 (2012).

http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1009&context=mslj

Epstein, A & Anderson, PM (2016) The Relationship Between a Collegiate Student-Athlete and the University: An Historical and Legal Perspective, 26 Marq. Sports L. Rev. 287 (2016)

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1673&context=sportslaw

Leppler, JJ (2014) I’m the One Making the Money, Now Where’s My Cut? Revisiting the Student-Athlete as an “Employee” Under the National Labor Relations Act, 4 Pace. Intell. Prop. Sports & Ent. L.F. 73 (2014). http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1026&context=pipself

Miller, R (2016) Employment Law Daily Wrap Up, EMPLOYEE STATUS—7th Cir.: Student athletes not employees entitled to minimum wage under FLSA, (Dec. 6, 2016)

https://www.jacksonlewis.com/sites/default/files/docs/WK_EMPLOYEE%20STATUS7th%20Cir%20Student%20athletes%20not%20employees%20entitled%20to%20minimum%20wage%20under%20FLSA%20Dec%206%202016.pdf

Morran, C (2016) Court: NCAA Athletes Are Not Employees, Not Entitled To Minimum Wage, Consumerist, 12.7.16. https://consumerist.com/2016/12/07/court-ncaa-athletes-are-not-employees-not-entitled-to-minimum-wage/

Shanley, B (2014) Student-Athletes: Why Employee Status is Not the Answer, Entertainment Law Seminar, Fall 2014. http://www.kentlaw.edu/perritt/courses/seminar/BridgetShanley.pdf