By Robert J. Romano, JD LLM, Professor of Sport Management at St. John’s University
When Mark Emmert, President of the NCAA, was interviewed by Frontline in February 2011, reporter Lowell Bergman didn’t pull any punches when he presented, quite frankly, the new head of the country’s largest intercollegiate sport governing body a series of issues and concerns surrounding the commercialization of college athletics: “You don’t see the contradiction that many have pointed out that when we’re watching March Madness, when we’re watching these games, you may have a coach who’s being paid six figures, maybe seven figures in some cases. Everyone is being paid – the athletic director, everyone you can see on the screen and many people you can’t – are being paid as part of this, but the students aren’t. The athletes who are actually performing are not paid.”[1]
Not phased, the freshly appointed and polished administrator’s reply was just as direct: “No, I don’t find that contradictory at all. Quite the contrary. I think what would be utterly unacceptable is, in fact, to convert students into employees. The point of March Madness, of the Men’s Basketball Tournament, is the fact that it’s being played by students. We don’t pay our student-athletes.”[2] He then went on to comment that, “The status question is about the student, not about the coach or the professor. And our student-athletes remain student-athletes. And they are preprofessional. They are not professional in anything.” [3]
Not surprisingly, Mark Emmert’s responses were in line with what the NCAA has been selling to the American public since the early part of the 20th Century: amateur collegiate athletes are those that play sport purely for the enjoyment and as a way to develop his or her mental, physical, moral, and social skills. In fact, the initial NCAA rule regarding amateurism in 1916 decreed that “no student shall represent a College or University in any intercollegiate game or contest who is paid or receives, directly or indirectly, any money or financial assistance.”[4]
By 2011, however, Mark Emmet’s answer was based on the more detailed and comprehensive NCAA rules, specifically, Section 2.9 “The Principle of Amateurism” which states:
“Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.”[5]
Additionally, as per Article 12 of the NCAA Division I manual, which governs rules related to athletic eligibility and amateurism, outlines how a student-athlete would lose his or her “amateur status”:
“An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual: (a) uses his or her athletic skill (directly or indirectly) for pay in any form in that sport; (b) accepts a promise of pay even if such pay is to be received following completion of intercollegiate athletics participation; (c) signs a contract or commitment of any kind to play professional athletics, regardless of its legal enforceability or any consideration received, except as permitted in Bylaw 12.2.5.1; (d) receives, directly or indirectly, a salary, reimbursement of expenses or any other form of financial assistance from a professional sports organization based on athletic skill or participation, except as permitted by NCAA rules and regulations; (e) competes on any professional athletics team per Bylaw 12.02.12, even if no pay or remuneration for expenses was received, except as permitted in Bylaw 12.2.3.2.1; (f) after initial full-time collegiate enrollment, enters into a professional draft (see Bylaw 12.2.4); or (g) enters into an agreement with an agent.”[6]
Since, according to the NCAA rules and bylaws as outlined above, an athlete will lose ‘amateur status’ if he or she uses his or her athletic skill for pay in any form, Mark Emmert’s statement that student-athletes cannot be considered employees of the college or university for which the play, was, by the NCAA’s own definition of amateurism, correct.
That isn’t to say that this concept of amateurism wherein student-athletes are considered ‘preprofessional’ that cannot be financial compensated, above that of the costs of the scholarship, has never challenged. One such attempt came in March 2014, three years after Mark Emmert took over as the NCAA’s president, when the National Labor Relations Board (NLRB) Regional Office in Chicago, after a petition was filed by Northwestern University quarterback Kain Colter, determined that members of the University’s football team that are receiving academic scholarships are “employees” within the meaning of the National Labor Relations Act (NLRA) and therefore, have the right to form a labor union.[7] The NLRB Regional Office based its findings after finding the following facts:
- The University’s football program generated revenues of approximately $235 million between 2003 and 2012, such that the players performed valuable services for the University.
- The players were “compensated” via scholarships equal in value of up to $76,000 per year.
- The players are engaged in football activities all year-round and devote between 40-50 hours a week to football activities during many months, which is often more time than they devote to academics.
- The football coaching staff exerted incredible control over the players, not only requiring them to practice and attend meetings on a rigid schedule throughout the day but also requiring them to seek some type of approval before they could make living arrangements, apply for employment, purchase vehicles, travel off campus, post items on social media forums, and speak to the media.[8]
Northwestern University, unquestionably at the urging of the NCAA and its over 1,100-member institutions, appealed the decision of the Regional Office to the full National Labor Relations Board in Washington, D.C. almost immediately.
The NLRB D.C. Office, in August 2015, maybe not surprisingly based on the political climate at that time, dismissed Colter’s petition. In its decision, the NLRB didn’t rule on the merits, but instead declined to exert jurisdiction of the matter and therefore, by not doing so, preserved one of the NCAA ’s core principles: that college athletes are students. However, the NLRB D.C. Office never determined whether or not the players are employees, instead, finding that the novelty of the petition and its potentially wide-ranging impacts on college sports would not have promoted “stability in labor relations.”[9] As per its decision, “The Board has never before been asked to assert jurisdiction in a case involving college football players, or college athletes of any kind. Even if scholarship players were regarded as analogous to players for professional sports teams who are considered employees for purposes of collective bargaining, such bargaining has never involved a bargaining unit consisting of a single team’s players.”[10]
But that was 2015. It is now 2021 and college sports is in a whole new post O’Bannon, post Alston, post Trump Administration, social media driven world. On September 29, 2021, NLRB General Counsel, Jennifer Abruzzo issued an ‘updated’ memorandum solidifying the NLRB’s current position wherein ‘certain’ “Players at Academic Institutions (sometimes referred to as student athletes), are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.”[11] Specifically, Abruzzo’s memo declares that “Players at Academic Institutions perform services for institutions in return for compensation and subject to their control. Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”[12]
It is presumed that the NLRB’s reclassification of student-athletes as employees is because of a) recent legal developments including the U.S. Supreme Court’s unanimous decision in NCAA vs. Alston wherein the Court recognized that college sports is indeed a profit-making enterprise, b) the players’ recent collective actions about racial justice issues and demands for fair treatment, as well as for safety protocols to play during the pandemic, which all directly concern their terms and conditions of employment, [13] and c) the new political climate under the Biden Administration.
Interestingly, the NLRB has warned colleges and universities that classifying players as ‘student-athletes’ leads to those players believing that they are not employees and therefore, can ‘chill’ employee rights. Therefore, the NLRB announced, that in appropriate cases, it will “pursue an independent violation when a college or university misclassifies players at academic institutions as student-athletes.”[14]
It may have taken over a hundred years, but finally someone, in this case the NLRB, recognizes the contradiction and illogicality of not paying student-athletes whose skills are the catalyst that drive this billion-dollar industry. The contradiction that Lowell Bergman highlighted, wherein when the American public is watching March Madness, a sporting event that generates over $900,000,000.00 annually for the NCAA, the coaches are being paid, the athletic directors and administrators are being paid (Mark Emmert earns $2.9 million as the President of the NCAA),[15] everyone associated with the event is being paid, but the student-athletes aren’t – may finally come to an end.
[1] https://www.pbs.org/wgbh/pages/frontline/money-and-march-madness/interviews/mark-emmert.html.
[2] Id.
[3] Id.
[4] Afshar, Arash (2014). “Collegiate Athletes: The Conflict Between NCAA Amateurism and A Student Athlete Right of Publicity”. Willamette Law Review.
[5] NCAA Division I Manual, Constitution Art. 2.9.
[6] NCAA Division I Manual, Constitution Art. 12.1.2.
[7] https://www.archerlaw.com/nlrb-regional-director-rules-northwestern-football-players-are-employees-and-can-unionize/
[8] https://www.sbnation.com/college-football/2014/3/27/5551014/college-football-players-union-northwestern-nlrb
[9] https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html
[10] Id.
[11] https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status
[12] Id.
[13] Id.
[14] Id.
[15] https://www.si.com/college/2021/07/19/mark-emmert-ncaa-salary-covid-19-revenue-drop
