Are Student Athletes Actually Employees?

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According to NLRB Regional Director Peter Ohr, yes, they are. His ruling issued in March 2014 found that scholarship players on the Northwestern University football team are employees of the school, and therefore have the right to form a union. Mr. Ohr's ruling has more than a few people wondering how he made that decision, so let's look at how he got there from an HR standpoint. Before we begin, I would like to point out that this ruling refers only to private schools – students at public universities are subject to state labor laws. 

Common Law Definition of an Employee: "Under the common law definition, an employee is 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.

The services (football), the payment (scholarship) and the control (scholarships can be immediately canceled or revoked by the school if the player voluntarily withdraws from the team or abuses team rules – not to mention that the NCAA has exhaustively detailed codes of athlete conduct) are easily identifiable in the relationship between student athletes and their universities.

Mr. Ohr also goes on to note that a contract of hire is effectively signed by the recruit before he is officially accepted by the school. Mr. Ohr states "when Northwestern football coach Pat Fitzgerald makes a scholarship offer to a recruit, he provides the individual both a national Letter of Intent and a four-year scholarship offer that is referred to as a "tender". Both documents must be signed by the recruit and the "tender" describes the terms and conditions of the offer."

Most states have "at-will" employment and rarely offer employee contracts.

Time: Northwestern players spend approximately 50-60 hours a week on football and football-related activities during the preseason (July to August), 40 to 50 hours a week during the season and postseason (September to January) and 20 to 30 hours a week during the offseason (February to April). When do these athletes have time to focus on the "student" part? It seems to me these players spend more time on football than we spend at our 9 to 5 jobs. And we are more than likely considered employees or at the very least 1099 contractors.

In a 2012 NCAA survey that asked athletes what they would change about their college experience, about 12% of Division I football players said athletics prevented them from majoring in what they wanted. The NCAA has a 20 hour rule, which states that, no matter what the sport, coaches can't take up more than 20 hours of their players' time. But in reality, the players are spending so much time as athletes that frequently they do not have enough time to focus on being students.

Money: Scholarships fail to cover all the expenses that players incur during their years in college and the NCAA forbids these players from entering into their own endorsement deals or otherwise profiting from their status as football heroes. In fact, all college players must sign a waiver relinquishing their right to make money off their likeness as NCAA athletes which basically sets the price of their image at zero. Specifically at Northwestern University, the players sign away rights to their image to the school and to the Big Ten conference. This policy potentially violates the Sherman Antitrust Act.

However, there are plenty of people and entities making a pretty penny off of these players' images: coaches, gamblers, athletic directors, administrators, schools (Northwestern's players generated two hundred and thirty-five million dollars for the school between 2003 and 2012). Oh, and as a non-football-related side note, the NCAA has a ten billion dollar television contract for the men's basketball tournament.

Control: The Northwestern University football players claim they are not asking for more compensation. They claim to be seeking the right to collectively bargain with the school over the conditions of their services as players – better medical coverage, concussion testing, four-year scholarships, and the possibility of being paid, etc.

Did you know that the players must comply with the team's regulations regarding the use of social media, and aren't allowed to give interviews that aren't scheduled by the athletic department? Upperclassmen living off campus must get their leases approved by the coach. Players need to obtain approval from the athletic department before getting an off-campus job. They have to tell their coaches about the cars they drive (The New Yorker). Most small businesses don't have employee handbooks that are this extensive and Mr. Ohr argues that these are examples of the control that employers can exert over employees.

Mr. Ohr writes "the goal of the football program is to field the most competitive team possible. To further this end, players on scholarship are initially sought out, recruited and ultimately granted scholarships because of their athletic prowess on the football field. Thus, it is clear that the scholarships the players receive is compensation for the athletic services they perform for the employer [Northwestern] throughout the calendar year, but especially during the regular season and postseason."

What do you think? Are student athletes employees? How would your college experience have differed if you had the demands of a student athlete?

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Guest February 20 2017
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