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

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

Annotated Bibliography 

The Prohibitive Costs of Paying Student Athletes , “Answers to” Blocks You’ll Need, Answering the Pro’s Exploitation Argument, College Athletics as a Plantation System,

*Introduction

This resolution asks two questions – Should NCAA athletes (SA) be treated as employees and should they be treated as such under the Fair Labor Standards Act (FLSA)?

The two questions are obviously related, but they are somewhat distinct, as athletes could be recognized as employees in many different ways, not just under the FLSA.  When you are researching the topic you will be able to find articles in all of these categories —

Should SA be paid?
Should SA be considered employees?
Should SA be considered employees under the FLSA?

These questions obviously overlap and there is some literature that covers all three, but you can find many unique articles in each area.

In this essay I will review the basic terminology of the resolution, provide important background information, review the arguments on both sides, and suggest some arguments about whether or not they should be recognized under the FLSA.

Let’s begin with the terminology.

*Definitions

NCAA. The NCAA is the National College Athletic Association (NCAA), the governing body of college sports.

Wikipedia, https://en.wikipedia.org/wiki/National_Collegiate_Athletic_Association

The National Collegiate Athletic Association (NCAA)[a] is a non-profit organization which regulates athletes of 1,281 institutions, conferences, and individuals. It also organizes the athletic programs of many colleges and universities in the United States and Canada, and helps more than 450,000 college student-athletes who compete annually in college sports. The organization is headquartered in Indianapolis, Indiana. In 2014, the NCAA generated almost a billion dollars in revenue. 80 to 90% of this revenue was due to the Division I Men’s Basketball Tournament. This revenue is then distributed back into various organizations and institutions across the United States.[3] In August 1973, the current three-division system of Division IDivision II, and Division III was adopted by the NCAA membership in a special convention. Under NCAA rules, Division I and Division II schools can offer scholarships to athletes for playing a sport. Division III schools may not offer any athletic scholarships

Within this basic explanation from Wikipedia, there are a few facts worth highlighting –

(a) It regulates how college sports operate, though it is worth noting that this is through a voluntary agreement by the schools that are members of the NCAA. The NCAA, as a non-profit organization, has no independent regulatory authority beyond what is granted by the member institutions.

(b) Students who play in all divisions do not receive scholarships. This is important to emphasize because the literature on the question of whether or not students should be recognized as employees is generally about scholarship athletes – those with who receive a full scholarship to a school in exchange for participating in sports and can lose their scholarships if they do not fulfill the often time consuming obligations the coaches place on them. The literature is really not about recognizing all student athletes as employees.

Student athletes. “Student athletes” are athletes who are both students at a college or university and athletes at the same time.   Since the resolution refers to “NCAA student athletes,” it is referring to student athletes who are in college who play a sport organized by the athletics department

Chaz Gross, JD, April 2017, Chicago-Kent Journal of Intellectual Property, Modifying Amateurism: A Performance-Based Solution To Compensating Student–Athletes For Licensing Their Names, Images, And Likenesses, http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1177&context=ckjip

n31 See NCAA, 2015-16 NCAA DIVISION I MANUAL 60, art. 12.02.13 (2015), https://www.ncaapublications.com/p-4388-2015-2016-ncaa-division-i-manual-august-versionavailable-august-2015.aspx [hereinafter NCAA 2015-16 MANUAL] (defining “student–athlete” as “a student whose enrollment was solicited by a member of the athletics staff or other representative of athletics interests with a view toward the student’s ultimate participation in the intercollegiate athletics program. Any other student becomes a student–athlete only when the student reports for an intercollegiate squad that is under the jurisdiction of the athletics department, as specified in Constitution 3.2.4.5. A student is not deemed a student–athlete solely on the basis of prior high school athletics participation.”).

While the term “student athletes” is a literal reference, it is also designed to reinforce popular conceptions of amateur sports that are designed to undermine claims that these students should be paid. In fact, the term “student athletes” was invented solely for this purpose.

Fram & Frampton, August 2012, Buffalo Law Review, A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, Nicholas Fram+ and T. Ward Frampton++ + J.D., University of California, Berkeley, School of Law; M.A., Stanford University, 2007; Clerk to the Hon. George B. Daniels, Southern District of New York, 2012-2013 Term + J.D., University of California, Berkeley, School of Law; M.A., Yale University, 2006; Clerk to the Hon. Diane P. Wood, United States Court of Appeals for the Seventh Circuit, 2012-2013 Term, http//www.buffalolawreview.org/past_issues/60_4/Fram.pdf

When William Rainey Harper became the first president of the University of Chicago in 1892, among his first (and highest paid) faculty appointments was former All-American football standout Amos Alonzo Stagg. Intercollegiate athletic competitions had blossomed over the past five decades, and Harper recognized that an acclaimed football squad could be a “drawing card” for the fledgling institution. He charged his new coach with “developing teams which we can send around the country and knock out all the colleges. We will give them a palace car and a vacation, too.” Department chairs quipped that Harper was “The P.T. Barnum of Higher Education,” n44 but his marketing strategies worked: Chicago soon built a nationally-renowned football program (despite allegations that Stagg was “employing professional athletes”), and enrollment tripled to 5500 by 1909. Amidst public outcry over the increasingly brutal nature of college football-at least twenty players were killed during the 1904 season n46 -sixty-two colleges met in 1905 to form what would become the National Collegiate Athletics Association. From the outset, the NCAA promoted an ethos of strict amateurism, including a ban on all forms of monetary incentives like athletic scholarships. But for the first fifty years of its existence, the organization lacked meaningful mechanisms to enforce its principles. In a major survey conducted by the Carnegie Foundation in 1929, 81 of 112 schools openly admitted violating NCAA policy, “ranging from open payrolls and disguised booster funds to no-show jobs [for athletes] at movie studios.” With member institutions hungry to satisfy the burgeoning commercial market for college sports, “the NCAA’s amateur code, like the Eighteenth Amendment, proved almost impossible to enforce.” By the late 1950s, the NCAA had abandoned a central tenet of its original amateur ideal: universities would now be allowed to pay for promising athletes’ tuition, housing, and other living expenses, regardless of academic distinction or economic need. Such payments to students were already commonplace, of course, but the NCAA hoped formal recognition would sanitize the practice and curb its excesses. n In affixing its imprimatur to the payment of athletic scholarships, however, the NCAA was also positioning itself to guide the explosive economic growth of college athletics that would come in subsequent years. As Professors Sack and Staurowsky explain, highly commercialized college athletics require both a pool of high-caliber athletes and a regulated distribution mechanism for spreading this talent between competing schools. n54 The NCAA’s 1950s reforms “rationalized the recruitment, distribution, and subsidization of player talent . . . laying the foundation for today’s corporate college sport.” Awarding tuition payments on the basis of athletic talent, once anathema to concept of amateurism, became the centerpiece of professionalized college athletics But while the NCAA reluctantly embraced this new vision of “amateurism,” the courts initially balked, finding it a facade for an underlying employer-employee relationship. In two cases in 1953 and 1963, state courts held that scholarship students, injured or killed in the course of their athletic duties, were actually university “employees” for workers’ compensation purposes. Recognizing that “higher education in this day is a business, and a big one,” the courts found that an injured athlete could have “the dual capacity of student and employee. . . . The form of remuneration is immaterial.” Shaken by the prospect that courts might recognize college athletes as “employees,” the NCAA invented the now ubiquitous watchword “student-athleteas a direct response to these legal defeats. Walter Byers, who served as the NCAA’s influential executive director from 1951 to 1987, recounts in his memoir the panic such cases provoked. The workers’ compensations cases raised the dreaded notion that NCAA athletes could be identified as employees by state industrial commissions and the courts. . . . We crafted the term student-athlete, and soon it was embedded in all NCAA rules and interpretations as a mandated substitute for such words as players and athletes . . . . The term “student-athlete” was designed not only to “conjure the nobility of amateurism, and the precedence of scholarship over athletic endeavor,” but to obfuscate the nature of the legal relationship at the heart of a growing commercial enterprise.

So, the term “student athlete” is meant to support normative arguments that favor the Con.

Ought

At a minimum, “ought” is the resolution means that the discussion should center on whether or not it is a good idea to recognize student athletes as employees, not whether or not it would happen (as clearly it would not – more on that below). Debaters will sometimes define ought to mean a “moral obligation,” and debaters may make arguments that there is a moral obligation to recognize them as employees.

Employees

Although this may come as a surprise to the unfamiliar, there is actually a substantial legal debate as to what constitutes an employee. Ordinarily, these disputes arise in the context of what is an independent contractor as compared to an employee.

To provide a reference to what you may be familiar with, there have been many courts cases over whether or not Uber drivers are employees of Uber. Uber always argues that the drivers are not employees but rather independent contractors because if are considered to be employees then Uber may become responsible for certain health and retirement benefits (if they work more than so many hours per week) and they may also take on greater legal liability related to their driver’s actions.

To reduce their exposure related to these issues, Uber structures its relationship with its drivers to ensure that the drivers do not work in a way the makes them likely to be considered employees.

How does it doe this?

Basically, Uber provides opportunities for its driver to provide rides to others but does not prescribe any specific number of hours its drivers must work – either in total or at any specific time. Drivers are free to clock on and pick up rides any time they wish. They are also free to clock off any time they wish. They have no prescribed hours, and prescribing hours is a critical determination of whether or not an individual is an employee.

How does this related to the current controversy?

It relates to the current controversy because one of the arguments made as to why SAs are employees is that they prescribed detailed hours when they must be present to practice (work). And like employees at other companies, they may also have particular parts of their lives regulated in other ways, such as how they behave on social media.

These arguments will be review in more detail later, but the important thing to understand here is that there is substantial legal debate as to what constitutes an “employee” outside of this particular controversy, and the arguments related to those controversies are often applied in this situation.

Why is the designation of “employee” significant?

Being deemed an employee is significant for a few reasons. First, it entitles an individual to be paid at least minimum wage. Minimum wage law is part of the FLSA. Second, employees are entitled to certain benefits, such as health insurance and worker’s compensation. Worker’s compensation provides supplemental insurance designed to pay for any injuries suffered by people while they are at work. Given injury risks in college athletics, this is obviously valuable to student athletes. Third, employees are arguably entitled to unionize. Unionization is covered under a different law – the National Labor Relations Act (NRLA). A lot of the literature related to the general question of whether or not SAs qualify as “employees” is written in the context of the NRLA because there has been significant dispute as to whether or not SAs meet the NRLA’S definition of “employee.”

Charles Muhlr explains the many benefits one is entitled to after he or she receives the designation of “employee.”

Labor Standards Act (FLSA)11 requires employers to meet minimum-wage and overtime obligations toward their employees. Title VII of the Civil Rights Act of 196412 prohibits employers from discriminating against their employees on the basis of race, color, religion, sex, or national origin, while the Age Discrimination in Employment Act (ADEA) 13 prohibits employers from discriminating against employees on the basis of their age. The Employment Retirement Security Act (ERISA) 14 sets the parameters of qualified employee benefit plans, including the level of benefits and amount of service required for vesting of those benefits, typically in the context of retirement. The Americans with Disabilities Act (ADA)15 prohibits employers from discriminating against qualified individuals who have disabilities. The Family and Medical Leave Act (FMLA) 16 requires employers to provide eligible employees with up to 12 weeks of unpaid leave per year when those employees are faced with certain critical life situations. The National Labor Relations Act (NLRA) 17 grants employees the right to organize and governs labor-management relations. Clearly, then, some incentive exists for employers to classify their workers as independent contractors rather than employees, in order to reduce costs and various legal obligations.

What exactly is an employee?

One of the problems is that there is no precise answer. See – What is an employee? The answer depends on the federal law.

Recognized

In this context, “recognize” means to “acknowledge the existence, validity, or legality of” Google definitions.

So, the resolution requires the Pro to argue that student athletes should be legally acknowledged to be employees. I will discuss how that may be done after I discuss the FLSA.

Fair Labor Standards Act (FLSA)

The FLSA is a federal (national, passed by the federal government in Washington DC) that, “establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009 (Department of Labor, https://www.dol.gov/whd/flsa/)

The resolution asks that whether or not a SA meets this law’s definition of employee.

The definition is not precise but focuses on whether or not one is economically dependent on their employer –

The FLSA defines “employ” as including to “suffer or permit to work”, representing the broadest definition of employment under the law because it covers work that the

employer directs or allows to take place. Applying the FLSA’s definition, workers who are economically dependent on the business of the employer, regardless of skill level, are considered to be employees, and most workers are employees. On the other hand, independent contractors are workers with economic independence who are in business for themselves. (Department of Labor)

For a more detailed explanation as to what constitutes being economically dependent, see this link.

A reasonable case can be made that student athletes are economically dependent on their scholarships.

*The Status Quo – Relevant Cases

There have been a number of legal disputes related to whether or not SAs are employees.

FLSA Cases 

The most directly relevant cases are related to claims made under the FLSA.

What is important to understand here is that no one claiming that a SA is an employee under the FLSA has ever prevailed and that one important reason they have not is that the Department of Labor explicitly says that SAs are not employees.

Michelle Piasecki is a lawyer who specializes in several areas of law, including U.S. collegiate sports. She is a former collegiate athlete and coach and is currently an associate at the law firm of Harris Beach, Spring 2016, Insights on Law & Society, Are College Employees Athletes? https://www.americanbar.org/publications/insights_on_law_andsociety/16/spring-2016/law-review–are-college-athletes-employees-.html

Berger v. Nat’l Collegiate Athletic Ass’n

Not long after the Northwestern football team filed for unionization, three female track and field athletes from the University of Pennsylvania (Penn) sued the NCAA and more than one hundred of its member institutions for alleged violations of the Fair Labor Standards Act (FLSA). In the complaint, Gillian Berger and her teammates argued that student-athletes, by virtue of their participation in athletics, were employees of their respective collegiate institutions. Under the FLSA, that meant that student-athletes were entitled to compensation in the form of federal minimum wages. To support their argument, Berger and her teammates noted the similarities between students participating in Division I athletics and those engaging in work study programs. Both categories of students perform “non-academic functions for no academic credit at the behest, and for the benefit, of the NCAA Division I Member Schools.” The only exception between the two is that work-study participants are paid while student-athletes are not. The failure to pay student athletes as employees, according to Berger and her teammates, creates a “perverse result” wherein some work study participants are allowed to reap financial benefits off the backs of uncompensated student-athletes without whom such work would be unavailable. The federal district court reviewing the case disagreed. In deciding the case, the court looked at whether the student or the school derived the primary benefit of the work performed. The court concluded that several factors weighed in favor of finding that a student’s participation in collegiate athletics was primarily for the student’s benefit. First, the NCAA has developed a “revered tradition of amateurism” that puts student-athletes on notice that they will not be compensated for participation in intercollegiate athletics. Students enrolled in Penn in particular could have no expectation that they would be paid for playing a college sport because Penn does not offer academic or athletic scholarships. Second, the Department of Labor has taken no action to apply the FLSA to student-athletes, despite the well-known existence of thousands of unpaid college athletes on campuses across the country. In fact, guidance from the Department of Labor explicitly excludes student-athletes from coverage under the FLSA. Pursuant to the Department’s Field Operations Handbook, “[a]ctivities of students in [interscholastic athletics] programs, conducted primarily for the benefit of the participants as part of the educational opportunities provided to the students by the school or institution, are not ‘work’ [under the FLSA] and do not result in an employee-employer relationship between the student and the school or institution.” These factors prompted the court to rule that Berger and her teammates were not employees of Penn and therefore not entitled to compensation under the FLSA.

There are two important things to note about this case.

One, these women were not receiving scholarships for participation in the sports they were playing and they were only seeking minimum wage. Minimum wage is likely substantially less than the value of most scholarships, which are worth anywhere between $25,000 and $65,000.

Two, the particular cases cited does not refer to scholarship athletes.

NRLA Cases

As mentioned above, students have also made claims under the National Labor Relations Act (NRLA) that they are employees. This dispute has a longer and more heavily covered body of literature because the students initially prevailed in on region with a single ruling but then failed in front of the larger National Labor Relations Board.

Michelle Piasecki is a lawyer who specializes in several areas of law, including U.S. collegiate sports. She is a former collegiate athlete and coach and is currently an associate at the law firm of Harris Beach, Spring 2016, Insights on Law & Society, Are College Employees Athletes? https://www.americanbar.org/publications/insights_on_law_andsociety/16/spring-2016/law-review–are-college-athletes-employees-.html

On January 28, 2014, representatives for the College Athletes Players Association (CAPA) walked into the National Labor Relations Board (NLRB) office in downtown Chicago and filed a petition to unionize the Northwestern University football team. The move sparked a national debate about the status of college athletes as employees that still reverberates today. CAPA’s petition, spearheaded by the team’s starting quarterback Kain Colter and supported by nearly all of his teammates, argued that college athletes were primarily employees entitled to protection under the National Labor Relations Act, including the right to unionize. CAPA cited the millions of dollars in revenue generated by the Northwestern football team each year, the amount of time football players dedicated to participating in their sport, and the influence the coaching staff and the school exerted over the players as evidence that the football players were employees of Northwestern. CAPA hoped that unionization would provide a seat at the table with the NCAA to negotiate better physical, academic, and financial protections for college athletes. On March 26, 2014, in what was viewed as a groundbreaking decision, the Regional Director for the NLRB granted CAPA’s petition, ruling that football players on scholarship at Northwestern were employees of the university. In support of his finding, the Regional Director noted that the football players performed valuable services for the university (resulting in approximately $235 million in revenue over a ten year period) for which they were compensated. Although this compensation did not come in the form of a traditional paycheck, athletic scholarships provided by Northwestern paid for the players’ tuition, fees, room, board and books during their four to five year playing careers. The Regional Director determined that the threat of losing that scholarship, which could be revoked for any number of reasons including a violation of team rules or voluntarily withdrawing from the team, compelled players to cede all manner of control over their athletic lives at Northwestern. Players were routinely required to spend 40 to 50 hours per week on football related activities during the regular season and an additional 20 hours per week during the off-season. Missing or arriving late to a practice or game could result in discipline or removal from the team. Northwestern controlled nearly every aspect of the players’ personal lives as well. Players were required to obtain a coaches permission before they could: “(1) make their living arrangements; (2) apply for outside employment; (3) drive personal vehicles; (4) travel off campus; (5) post items on the Internet; (6) speak to the media; (7) use alcohol and drugs; [or] (8) engage in gambling.” When taken together, the Regional Director surmised that these factors supported a finding that the players were employees of Northwestern. The decision allowed the players to choose (through the NLRB’s election process) whether to be represented by CAPA in collective bargaining negotiations with Northwestern. CAPA’s victory was ultimately short-lived as Northwestern appealed the Regional Director’s decision to the full NLRB panel. On review, the NLRB declined to assert jurisdiction over the case on the basis that its decision “would not promote stability in labor relations.” The NLRB noted that the unique nature of college football, wherein there exists a “symbiotic relationship” between the teams, conferences, and the NCAA, makes it difficult, if not impossible, to assert jurisdiction over only one team. Issues impacting the players at Northwestern would also affect the Big Ten Conference, its conference members, the NCAA, and other Division I institutions. For this reason, every previous sports case decided by the NLRB only covered league-wide bargaining arrangements. The NLRB also observed that the majority of teams competing in Division I FBS football were public institutions and therefore exempt from NLRB jurisdiction. Of the more than 125 colleges and universities participating in FBS football, only 17 would be impacted by a decision from the NLRB, and in the Big Ten Conference, a decision would only affect Northwestern. With so little anticipated impact on college athletics as a whole, the NLRB declined to issue a decision in the case. Although not a primary reason for declining to assert jurisdiction, recent changes in the college athletics landscape made the NLRB’s decision easier. In the months leading up to the NLRB’s ruling, several prominent colleges and universities began offering four year athletic scholarships, the NCAA approved financial aid up to the full cost of attendance (granting athletes additional funds to cover meals, school supplies, multiple trips home per year, and other miscellaneous expenses), schools were allowed to provide athletes with unlimited meals and snacks, and the NCAA began taking steps to address concussion injuries among college athletes. In a somewhat thinly veiled threat to the NCAA, the NLRB warned that “subsequent changes in the treatment of scholarship players could outweigh the considerations that motivated its decision to decline jurisdiction in this case.” The NLRB was also careful to note that its decision was limited to the football players at Northwestern and was not an indication of how the NLRB would approach a petition on behalf of all Division I scholarship football players; potentially leaving the door open for CAPA, or some other organization, to renew the case.

There are a couple of important things to note about this case.

One, the cases was before the NRLB, which is not a court.   That’s more of an FYI than something that is particularly significant.

Two, The regional representative originally determined that the SAs were “employees” under the NRLA. The full NRLB did not dispute (or affirm) this, but simply said that they do not appropriate jurisdiction over the matter. Why? Because the NRLB only governs labor practices at private institutions. While Northwestern is a private institution, most of the universities that have sports programs where students receive scholarships and are subject to the type of regulations mentioned in this card are from public universities. The NRLB doesn’t have jurisdiction over these institutions and they are regulated by state labor law. So, even if SA were determined to be “employees” under the FLSA, it is not clear that they would be afforded any bargaining rights under at least federal law.

O’Bannon Case

The O’Bannon case deals with a lawsuit filed by Ed O’Bannon, a former star member UCLA’s basketball team who claimed that his image and likeness was being used without compensation. In his case, he actually represented all current and former players who are in similar situations.

Although the case did not deal with whether he not he and the other similarly situated individuals should be treated as employees, the case does get at the claim of whether or not SA should be compensated for their work and whether or not they are ameterus.

The case and its results are summarized here –

Michael McCaan, October 3, 2016, Sports Illustrated, In Denying O’Bannon Case, Supreme Court Leaves Future of Ameturism in Limbo, https://www.si.com/college-basketball/2016/10/03/ed-obannon-ncaa-lawsuit-supreme-court

Seven years after former UCLA basketball star Ed O’Bannon filed a federal lawsuit against the NCAA over whether Division I men’s basketball and football players ought to be compensated for the commercial use of their names, images and likenesses, the U.S. Supreme Court on Monday denied petitions by both O’Bannon and the NCAA to review the case. The denial was expected. The Supreme Court only accepts about 1% of cases for review and frequently declines to hear cases of substantial importance to large classes of people—including, as illustrated here, thousands of college athletes, former college athletes and their respective universities. The denial also leaves in place a 2015 decision by the U.S. Court of Appeals for the Ninth Circuit in favor of O’Bannon. A three-judge Ninth Circuit panel consisting of Judges Sidney Thomas, Jay Bybee and Gordon Quist found that certain NCAA amateurism rules violate federal antirust law. Those rules, the court determined, constituted an anti-competitive conspiracy by the more than 1,200 member NCAA colleges, conferences and affiliate organizations. The purpose of such a conspiracy was to deny men’s basketball and football players of the monetary value of their names, images and likenesses when used for commercial purposes. While O’Bannon prevailed at the Ninth Circuit, he and many college athlete advocates hoped that the Supreme Court would review the case and decree a more substantial remedy. There were expectations, for example, that student-athletes might receive significant compensation through licensing agreements and other arrangements related to broadcasts and other commercial products. (In 2013, Electronic Arts reached a $40 million settlement to resolve related name, image and likeness claims connected to the company’s college video games.) The Ninth Circuit essentially rejected more substantial remedies. It instead reasoned that, by allowing colleges to offer student-athletes additional compensation up to the full cost of attendance, the NCAA cures the antitrust harm caused by its otherwise unlawful amateurism rules. Such a measure is already in place, meaning the Ninth Circuit’s ruling in O’Bannon compels no additional changes of the NCAA or its member schools, conferences and other affiliated organizations. Two of the three Ninth Circuit judges also vacated a more substantial remedy imposed earlier in the litigation by U.S. District Judge Claudia Wilken. In 2014, Judge Wilken ruled that colleges must reward men’s basketball and football players up to $5,000 per year while they are in school for the use of their names, images and likenesses, with payment made after they graduate. This idea encountered problems for several reasons, including that it was never clear why $5,000 and not $1,000, $10,000, $100,000 or some other number was the appropriate cap or, for that matter, why any fixed cap was appropriate under antitrust law—an area of law that promotes competition. To the disappointment of some, the Ninth Circuit’s ruling ensures that a payment system won’t be implanted. As a result, the NCAA’s controversial system of “amateurism” largely remains in place. MOVING FORWARD: JENKINS V. NCAA MOVES TO THE FOREFRONT Had the Supreme Court taken the O’Bannon case, the justices could have provided some degree of closure as to whether and how college athletes should be compensated for the commercial use of their names, images and likenesses. The Court might have also provided guidance on how altering compensation rules would interact with Title IX, a federal law that, among other things, requires that male and female college athletes be treated equally. Instead, the debate will go on. Along those lines, the Ninth Circuit’s decision in O’Bannon can be used as favorable precedent for other legal challenges to NCAA amateurism rules. The precedent of O’Bannon is a particularly significant point in regards to a case brought by sports attorneys Jeffrey Kessler and David Greenspan on behalf of Martin Jenkins and other players. In 2014, these players sued the NCAA under federal antitrust law. Their case is being heard in the U.S. District Court for the Northern District of California, the same court that heard the O’Bannon case. Further, Judge Wilken, who ruled for O’Bannon, is presiding over this litigation.

There are a couple of important things to note about this case.

One, although the cases doesn’t deal with defining SA as employees, it does suggest other ways to compensate SA, particularly those that are of enough worth to have their images and likeness sold for value. If there are any students who are currently not receiving their market value in scholarships. Since the claim that scholarship players do not receive their market value is limited to only a small percentage of players, and expanding the opportunity for compensation without designating them as employees.

Two, the case brings up another important point – how de we determine what to pay the players? $5,000, $10,000, $100,000?

Third, If it is determined that some of the players are paid, and paid well, how do we determine what to pay other players. In particular, Title IX says that we have to treat men’s and women’s sports equally, so if we have to pay the men because their sports generate profit (at least men’s basketball and sometimes men’s football), then we at least have to pay some women SA, but their sports are not profitable…and if everyone is paid, huge financial losses for the schools.

These are all points worth considering as you prepare the Con.

*How would Student Athletes Be Recognized as Employees?

Although PF debates are not about plans, it is worth noting NCAA SA could be legally recognized as employees –

(a) Congress — by changing the FLSA legislation to specifically define “employee” to include student athlete

(b) Federal courts – by interpreting “employee” as covering “student athletes.” Obviously the courts have decided against this as of now, but that could arguably change

(c) The Department of Labor — to define “employee” as a student athlete, changing its existing definition.

(d) a combination of B & C

(e) The NCAA – The NCAA could say that student athletes should be treated as employees, but remember that the NCAA doesn’t have any authority outside what is provided by the member schools. If the NCAA were to issue such a directive, many schools may leave the NCAA.

(f) Universities – It seems the colleges and universities could recognize their SA as employees, but I don’t think that would be legally binding, as the term “recognize” suggests.

(g) State courts—State courts could argue that state labor laws require that student athletes are treated as employees. There is a reasonable about of literature, some of which is quoted in our evidence release, that claims that labor law victories are both more durable and more likely if they are litigated in state courts. Since state labor law governs state universities, where most of the Division I athletes play, this may prove more useful for advocates than federal law. And since we have seen the growth of states/federalism and social movements arguments in PF, at least at the national circuit level, this may be relevant. This is obviously potentially strong Con ground.  This sets-up a negative argument that says they should be recognized as employees but not under the FLSA.

*What is the value in being deemed an “employee”

In the next essays we will cover Pro and Con arguments, but both sides need to think carefully about the value of designating SA as employees. Here are some questions to think about —

(a) What wage will be paid? How will that be negotiated?

(b) Will all student athletes receive the same wage? Only those in division I? Division II? Division III? Only men’s basketball and football in division I?

© Will wages replace scholarships? If so, how will the tax situation be managed?

(d) Specifically, how will SA be further ahead by being called employees?

(E) Might some universities cancel their athletic programs if they have to pay all of their athletes?