By Robert J. Romano, JD LLM, Senior Writer, Professor of Sport Management, St. John’s University
The term “student-athlete” came into play almost 70 years ago after the family of Ray Dennison, who died from a head injury sustained while playing college football for the Fort Lewis A&M Aggies, filed for workers’ compensation death benefits. The Colorado Supreme Court disallowed the claim, finding that “since the evidence does not disclose any contractual obligation to play football, then the employer-employee relationship does not exist” and as such, college football players are to be categorized as ‘student athletes’, and not as college employees.[1] Soon afterwards, then NCAA president Walter Byers. embedded this concept of the student-athlete into all NCAA rules and interpretations.
This term of the “student-athlete”, however, was deliberately kept vague and ambiguous by the NCAA and by combining the word student with the word athlete, meant that the member institutions of the NCAA did not have to provide any form of compensation for anything more than that of the cost of the student-athletes’ scholarship. With this beneficial economic model in place, “student-athlete” became the NCAA’s signature term, repeated constantly throughout both its rules and bylaws, and courtrooms across the United States.[2]
However, on February 5, 2024, the National Labor Relations Board’s Region 1 Office, in the matter of Trustees of Dartmouth College, 01-RC-325633, rejected the NCAA member institution’s argument that Dartmouth’s men’s basketball players did not constitute “employees” under the National Labor Relation Act, finding that the 15 members of the team are an appropriate bargaining unit as per the Act, and directed that an election be held. Specifically, the NLRB determined that the Dartmouth’s control of the “work” performed by the members of the team, coupled with the “compensation” that they received for such work, rendered them employees who were entitled to NLRB protections including the right to vote on a union to serve as their collective bargaining representative.[3]
The NLRB’s Region 1 recent decision is just one in its endeavor to redefine college athletes at NCAA academic institutions as “employees” under the National Labor Relations Act. An earlier attempt came in March 2014, when the 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 and therefore, have the right to form a labor union.[4] The NLRB Regional Office in Chicago based its findings on the following:
- 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.[5]
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’s 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’s D.C. office never determined whether 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.”[6] 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 unit consisting of a single team’s players.”[7]
Another attempt came on September 29, 2021, when 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.”[8] 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.”[9]
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, [10] 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.”[11]
It has taken almost seventy years, but finally some entity, 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 being that 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 – everyone associated with the event is being paid, but the student-athletes aren’t – may finally come to an end.
[1] State Compensation Insurance Fund and Fort Lewis A & M College v. Industrial Commission of Colorado and Billie Dwade Dennison, 314 P.2d 299, (1957).
[2] https://www.theatlantic.com/entertainment/archive/2011/10/the-shame-of-the-ncaa/246775/.
[3] Trustees of Dartmouth College, 01-RC-325633.
[4] https://www.archerlaw.com/nlrb-regional-director-rules-northwestern-football-players-are-employees-and-can-unionize/
[5] https://www.sbnation.com/college-football/2014/3/27/5551014/college-football-players-union-northwestern-nlrb
[6] https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html
[7] Id.
[8] https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status
[9] Id.
[10] Id.
[11] Id.
