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MOVING THE CHAINS: WHY EMPLOYEE STATUS FOR COLLEGE ATHLETES IS NECESSARY TO ENSURE THEIR PROTECTION

by Patrick Prager

As a group whose efforts generate large amounts of revenue, the “student-athlete” is surprisingly uncompensated and unprotected.  In 2013, because of the efforts of student-athletes, the National Collegiate Athletic Association (the NCAA), the body governing college athletics, generated revenues nearing  $900 million dollars. Although the student-athlete’s on-field work leads to these revenues, student-athletes are not considered university employees and, as such, are not afforded the protections that come with that designation under the National Labor Relations Act (“the NLRA”). Rather, in exchange for a scholarship (plus room and board), athletes dedicate large amounts of time to their sport and coaching staffs control their social and academic lives. Student-athletes work more than forty hours a week, limiting their ability to truly realize the university experience or fully dedicate themselves to their academic work. But because they are students and not employees, they have not been allowed to collectively bargain, stripping them of the ability to fight for fewer work hours, compensation for the use of their own images, or even worker’s compensation.

Schools are exploiting student-athletes. High-level athletes are always in danger of injury, but are never eligible for workman’s compensation to protect them if they become disabled by their on-field efforts. Additionally, athletes’ scholarships may not be guaranteed, aid packages may not be properly constructed, and they may not receive adequate academic support. These athletes fill stadiums, and bring in millions in TV revenue, jersey sales, and alumni donations. They should be entitled to the fruits of their labor, or at least be protected from the dangers of it. Some students at Northwestern University felt similarly and, through an organization called the College Athletes Players Association (CAPA), sued Northwestern for employee status. The regional National Labor Relations Board (NLRB) granted them employee status, and Northwestern appealed it to the National NLRB headquarters.photo6

 Quarterback, Kain Coulter, helped bring the suit against Northwestern University.

Quarterback, Kain Coulter, helped bring the suit against Northwestern University.

In the wake of the Regional Board’s decision, the NCAA’s Board of Directors adopted a new Division 1 structure. It reorganized itself and provided autonomy to its five largest conferences, commonly known as the Power 5. The Power 5 conferences met in January 2015 at the NCAA Convention and revolutionized the lives of college athletes. The Power 5 convention committee met athlete demands in some areas: guaranteeing four-year scholarships; increasing cost-of-attendance formulas to give athletes what amounts to a $5,000 stipend; raising requirements to return to play after concussion like symptoms; and allowing star athletes to take out insurance against their future earnings, so that star athletes could receive large payouts in the event that injuries prevented a fruitful NFL career. These advancements help athletes live above the poverty line, allows them to focus more on academics (without fear of losing their one year scholarship because of poor on-field performance), and protects them against a growing concussion problem associated with football.

With these changes, the NCAA attempted to persuade athletes and the nation that unionization is not necessary to protect athletes. By allowing these changes the NCAA has tried to prove to athletes that they do not need a union to better their situation. The NCAA attempted to show progress and, through that progress, hoped to make the athletes’ case weaker. But it was the intimidation of impending player unionization that caused the NCAA to make seismic shifts in its organization and provide better conditions for athletes at major schools. These changes came in response to fear that athletes would be given employee status and therefore prove just how necessary unionization for athletes truly is. Athletes will finally receive all the protections they need, both medical and financial, if they are allowed to unionize and collectively bargain. Without unionization, progress can be made, but a solution cannot be realized. Athletes may get some concessions from the NCAA, but not enough.

The NCAA Convention did not eliminate the difficulties facing student-athletes. First, the Convention decision only applies to Power 5 players, and still leaves thousands of athletes in the same situation they were in prior to the conference. Second, the Committee did not fully develop solutions to health issues that athletes face. All athletes are still exposed to the threat of injury and lack financial and medical protection if they are affected long-term. Third, the athletes lack any representation when they have a conflict with their universities. Only through a national labor organization, under the protection of the NLRA, will the athletes get all of the protections they deserve.

NCAA Convention

NCAA Convention

First, the NCAA has ignored athletes at smaller schools. Because the Power 5 schools now dictate their own policies, the issues addressed at the NCAA Convention do not apply to schools with less financial clout. But in many ways, the concessions given to Power 5 athletes are required even more by athletes of the other conferences, as they are less likely to “go pro”. Educations are much more valuable when there is little hope of the huge economic windfall that a professional sports career provides. When a high school athlete chooses to go to a Power 5 school, they often do so with an eye toward professional sports. Athletes at lower schools, however, are less highly recruited, and as such, have lower professional aspirations.

The reason smaller conferences were not included in the Convention was because the NCAA feared increasing the financial responsibilities for those schools. The convention Committee increased the cost of attendance formula that schools use for deciding scholarship amounts, to provide athletes with more money and thereby decrease the chances they would live below the national poverty line.  Because of concerns that the small schools would not be able to afford to provide athletes with the adjusted scholarship amounts, small schools were shielded from the obligation. But by leaving out smaller schools, the NCAA also deprived those schools’ athletes of the other benefits awarded, such as guaranteed scholarship, regulation of time demands, and player safety improvements, which cost schools nothing. Progress made toward bettering player safety and security does not apply to schools outside of the Power 5.

Second, what player safety issues were addressed, were not addressed properly. For example, questions have been raised regarding the effectiveness of the Committee’s approved concussion safety protocol. The approved protocol instructs schools on how to better recognize concussion-like symptoms, but allows coaches, not doctors, to make the final call on returning athletes to games. Representatives of the Big 12, one of the Power 5 conferences, specifically criticized the protocol. The Big 12 suggested that physicians should have “unchallenged authority” to hold a player off the field after the player experiences concussion-like symptoms and protested the influence coaches have on determining the health of a player under the passed model.  Dr. Michele Kirk, a team physician at Texas Christian University, said the passed concussion policy was a PR stunt, lacking “teeth.” The Committee should have taken the most cautious approach possible, but instead showed the reflex to prioritize winning over player safety.

Another player safety concern not addressed, was worker’s compensation. In today’s athletic environment, athletes are bigger, faster, and stronger than in the past. As a result, the Internet is inundated with videos of gruesome player injuries.  But because student-athletes are not employees, if they are permanently injured, they are unable to receive worker’s compensation, essentially putting the cost of an on-field injury on the athletes rather than the schools. The NCAA has even avoided worker’s compensation for a player that died on the field. Without the protection of worker’s compensation, the worst occurrences of athlete mistreatment may be repeated.

Ray Dennison died on the field, but his wife was not awarded worker’s compensation rights.

Ray Dennison died on the field, but his wife was not awarded worker’s compensation rights.

Third, when athletes have issues with player safety, scholarships, or any other topic, they have no redress. The new rules and policies were passed to benefit athletes, but without a player’s union, the athletes have no way to enforce them, nor do they have anyway to air grievances with their schools or the NCAA. This is specifically true in a system where disciplinary proceedings are not entirely transparent. Without a labor agreement, requiring oversight to enforce new player benefits and observe player terminations for rule violations, athletes face uneasiness regardless of what they are publically given. Athletes are inundated by rules and regulations, and schools and the NCAA should not be able to punish them without some oversight. Athletes need employee status and representation by a union to make sure progress and protections are truly recognized and not just show for those outside the NCAA.

Athletes will not see change in all these areas without unionization. Without the enforcement power of the NLRB, players will remain exposed to mistreatment or the financial devastation of a life-altering injury. And not every player will see the progress being made. The NLRB must affirm the employee status of college athletes to ensure that all are fully protected. Schools should recognize the debt they owe to their athletes. Instead, to be a truly successful organization in the business of college athletics, the NCAA must make sure that it provides its athletes the best opportunities not just athletically, but also academically, financially, and physically.

Patrick Prager is a third-year law student at St. John’s University School of Law and Associate Managing Editor of the Journal of Civil Rights of Economic Development.  Patrick also holds leadership positions in the St. John’s Law School Democrats and the American Constitution Society. He currently serves as a law clerk for Morris Duffy Alonso and Faley.

The pictures used herein and in the slider are not the property of the author and can be found at the following web addresses:

http://www.bizjournals.com/chicago/news/2014/01/28/northwestern-university-is-ground-zero-for-college.html

http://fs.ncaa.org/Docs/NCAANewsArchive/2008/association-wide/2009+convention+meeting+space+now+available+-+07-16-2008+-+ncaa+news.html

http://www.durangoherald.com/article/20140925/NEWS01/140929648/Fort-Lewis–x2019–first—x2018-student-athlete–x2019–