By Daniel A. Ojeda
An undersized, walk-on football player with limited talent but boundless determination, in his final play in a Notre Dame Fighting Irish jersey, sacks a stunned Georgie Tech quarterback and is carried off the field on his teammates shoulders to the hysterical cheers of 60,000 Irish fans. This heartwarming story earned national appeal when it became the subject of the 1993 hit movie Rudy and was forever etched in the memory of millions of college football fans.
Rudy won over audiences with his grit and relentless dedication to Notre Dame football. On a broader level, many fans appreciate collegiate athletes because they perform selflessly for the love of their sport and school rather than financial rewards. But with recent court decisions possibly foreshadowing the demise of amateur college athletics, many fans fear that converting to a professional system will damage the culture and detract from college sports’ populist appeal.
Recent legal decisions tend to support the common perception that college athletics will inevitably transform to a professional model. In Northwestern University and College Players Association, Case No. 13-RC-121359 (2014), for example, the National Labor Relations Board found that grant-in-aid scholarship football players were employees of the university for purposes of the National Labor Relations Act. In O’Bannon v. NCAA, 7 F.Supp.3d 955 (N.D. Cal. 2014), the Court further eroded the concept of college amateurism when it ruled that NCAA rules prohibiting payment of compensation to student-athletes for the use of their names, images, or likenesses violated federal antitrust laws. And in Sackos v. NCAA, a case pending in a U.S. District Court in Indiana, the plaintiffs allege that student-athletes meet the definition of temporary employees under the Fair Labor Standards Act (FLSA) and are entitled to receive at least minimum wage for their efforts.
The wave of lawsuits could radically alter the college athletics landscape. If that is the fate of college sports, it would behoove those directly involved — fans, participants and officials — to consider the consequences of such a dramatic change and explore possible alternatives. Other options may exist, such as volunteer and internship programs, which provide a better fit for many student-athletes than the professional model.
The FLSA regulations define a volunteer as “an individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.” (29 CFR, § 553.101.) Individuals are considered volunteers only where they offer services freely and without pressure or coercion, direct or implied, from an employer. “Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers,” as long as the “nominal fee” is not tied to productivity. (Id. § 553.106(a).) Volunteers benefit from the satisfaction of helping others or contributing to a cause, but they are not compensated and do not enjoy the benefits and rights of employees. Volunteering may provide a good fit for many collegians, who, like high school athletes, benefit from the camaraderie, education, and feeling of loyalty provided by participating in sports.
Although universities have not developed athletic volunteer programs, volunteerism in schools is well established. A federal appellate court found, for example, that a high school golf coach was a volunteer and was not entitled to back pay and benefits from the school district where he coached. (Purdham v. Fairfax County School Board, 637 F.3d 421 (4th Cir. 2011).) The coach claimed the school district could not classify him as a volunteer under the FLSA because it gave him an annual stipend and reimbursed him for his expenses and travel. The court disagreed, finding that his stipend was merely a “nominal fee” as defined by the FLSA regulations and the coach was motivated in part by his love of golf, his dedication to his student athletes, and the satisfaction of coaching. (Purdham, supra, 637 F.3d at 429.) Similarly, a federal appeals court in New York recently held that a high school properly classified a school mentor as a volunteer despite the fact the individual was motivated in part by personal reasons, including building his resume and receiving financial stipends from the school. (Brown v. New York City Dept. of Education, 755 F.3d 154 (2d Cir. 2014).)
The reasoning in Purdham and Brown could apply to the case of a college athlete competing for her university. Indeed, college athletes satisfy many of the FLSA criteria of volunteers. Historically, student-athletes have offered services freely and without pressure or coercion from universities. Colleges often pay athletes expenses and benefits, including scholarships, but in most cases these payments would not exceed the FLSA’s nominal fee amount. And student-athletes have traditionally been motivated at least in part by the love of sport, solidarity with teammates, and loyalty to their schools. Rudy, for example, would stop at nothing for the privilege of playing alongside his Fighting Irish teammates.
The problem with the volunteer scenario is that many college athletes no longer wish to sacrifice their time for the university cause and do not consider their participation in sports as a contribution for civic, charitable, or humanitarian reasons. The cascade of lawsuits against the NCAA signifies a new era in college sports, one in which coach salaries far exceed those of university presidents, athletic conferences earn billions of dollars in television revenues, and athletes expect to receive their piece of the ever-growing pie. While volunteerism continues to have its place in high school coaching ranks, where big money is not at stake, it may seem like an antiquated notion for many modern-day college athletes.
Considering the dynamics in college sports today, internship programs may provide a more relevant and applicable model for college athletes than volunteerism. Internships, which descend from the centuries-old European apprenticeship system, prepare individuals for the workforce by providing hands-on, practical training. An individual need not have altruistic motives to qualify as an intern under the FLSA.
The U.S. Department of Labor (DOL) has developed a stringent six part test to determine whether a worker in a for-profit business qualifies as an intern. Under the DOL test, companies must show that an internship benefits the intern not the business, the intern receives similar training to which he/she would receive in an educational environment, the intern does not receive wages and does not displace regular employees, and the intern is not entitled to a job at the end of the program. (Fact Sheet #71: Internship Programs Under the FLSA, Dep’t of Lab. (April 2010).) The DOL test would not apply to most university athletic programs, however, because it specifically excludes government agencies and non-profits from the requirements. (Fact Sheet #71, supra, note 1.) Instead, the DOL classifies government and non-profit interns as volunteers, effectively creating an intern sub-category within the volunteer classification. Within this framework, public agencies at the federal, state and local levels continue to operate robust intern programs that offer significant benefits for both the individual and the government. Similarly, universities could offer athletic internship programs as a viable alternative to the employee-employer model contemplated in the Northwestern/O’Bannon/Sackos series of cases.
There is precedent for such an approach in the university setting. The DOL has approved university intern programs that allow students to gain practical experience by “shadowing” employees at the workplace of a sponsoring employer. (See Wage & Hour Div., U.S. Dep’t of Labor, Op. Letter No. FLSA2006-12 (April 6, 2006). But there are also significant hurdles in the intern approach. The typical university internship provides direct academic benefits to students in the form of class credits. An athletics-based internship would lack this nexus to the classroom. And most academic internships do not financially benefit the university. In the athletic context, universities receive millions of dollars in ticket sales, merchandise deals, and broadcasting contracts based on the performance of their athletic teams. It is unclear whether the DOL and the courts, considering the unique issues presented by student-athlete internships, would change course and apply the more stringent Fact Sheet #71 standards or create an entirely new test for student-athlete interns rather than relying on the FLSA’s volunteer test.
Considering the diversity of interests associated with collegiate athletics — educational opportunities, camaraderie, health benefits, resume building, school integrity, and financial rewards — it may not be possible to apply one label to all student-athletes. Some may become employees due to the unique nature of their sport; others may fit more squarely within the intern model. Different classifications could exist within sports, with a walk-on utility player like Rudy agreeing to volunteer while his more prominent teammates are compensated for their efforts. Universities will need to work together to devise appropriate systems that recognize the changing tides in college athletics and help preserve the integrity of sports.
Daniel A. Ojeda is a member of the California State University, Office of General Counsel, in Long Beach, California. Mr. Ojeda is counsel to Fresno State, a member of the OGC Human Resources Team, and a specialist in athletics and NCAA matters. This article represents the views of the author and does not necessarily reflect the opinions or policies of the California State University.
