College football players are employees

By Mickey Hirten

Bid to unionize challenges NCAA, college rules for so-called ‘student-athletes’

The petition by Northwestern University football players seeking union representation raises issues that the billion-dollar college sports money machine casually dismisses — but shouldn’t. The appeal to the National Labor Relations Board, supported by most of the team, challenges the concept of “student athletes.” The players assert that they are employees.

Of course, the National Collegiate Athletic Association and the college athletic establishment disagree.

“This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary,” the NCAA’s chief legal officer, Donald Remy, wrote in response.

A predictable strategy: vilify the union, the newly formed College Athletes Players Association, which is backed by the United Steelworkers.

The NCAA oversees the plantation-like system built on student work product, a structure that largely benefits college athletic departments and their like-minded governing bodies like the Big Ten Conference.

The concept of the “student athlete” arose a century ago when it was, in fact, true. And in practice it exists in what colleges derisively term “minor sports” like swimming, golf, wrestling and track. Other than friends and family, these sports attract little interest, no crowds and make no money for their schools.

But for big-time college football and basketball, the ideal of amateurism faded long ago; it’s now a multi-billion-dollar enterprise annually and growing. In 2011-‘12, according to reporting by the Lansing State Journal, the Michigan State football program’s revenue totaled nearly $50 million with expenses of $20 million. That’s a $30 million profit. For basketball, the revenue topped $19 million with expenses of about $10 million. Profit: $10 million.

A sweet business, and one that adds weight to the claim of football players at Northwestern that they are employees.

“Young men playing major football and basketball are not there primarily for an education. They’re primarily there to win football games and basketball games and perform well,” Robert McCormick, a professor at MSU’s College of Law and formerly an attorney with the NLRB, stated in the July 2011 issue of Diverse: Issues in Higher Education.

He suggested that because students’ lives are controlled by coaches, compensated by scholarships and dependent on aid that they fulfill the common law definition of employees.

It’s the degree of institutional control that is central to attorney Mark Edelman’s analysis of student-athletes’ legal employment status.

He writes, most recently in Forbes, about the benefits from football and basketball that accrue to schools — largely money and marketing clout — and about the financial windfall for coaches, often the highest paid public employees in their states.

At MSU, football coach Mark Dantonio earns $1.9 million a year, soon to be about $4 million. Tom Izzo gets about $3.7 million, according to USA TODAY. Gov. Rick Snyder’s pay is about $160,000. MSU President Lou Anna K. Simon receives $520,000 a year.

For the coaches, this is just the bloat that is big-time college sports. They control their careers, which Edelman notes is not the case for athletes who are captive of the their institution’s policies, such as out-of school employment.

“The NCAA ban on college basketball players’ paid participation in summer leagues under the amateurism principle creates a double standard, because college students uninvolved in athletic programs are allowed to pursue extracurricular activities,” Edelman, an associate professor of law at Baruch College, City University of New York, wrote in the Feb. 28, 2013, Case Western Reserve Law Review.

“The conventional college experience allows students to work in their preferred field during the summer. Many superstar college basketball players are considering athletic careers. A summer experience in professional basketball would provide an opportunity for these student-athletes to assess a sports career while earning some money, much as other students do.”

But it’s forbidden. They are, after all, “amateurs.”

The Northwestern bid for union presentation isn’t about pay. Students acknowledge that they are compensated, if imperfectly. For them and for now, it’s a matter of employee rights: workers’ comp, control of their images, medical care and the benefits employees expect from their employer.

The NRLB will make the next move on the petition that affects only private universities. But the move mirrors other sports labor initiatives, many of which have succeeded. This is only the beginning.