For almost one hundred years, student athletes have been considered students, not employees. Recently, Peter Sung Ohr, the Chicago Regional Director of the National Labor Relations Board (“NLRB”) ruled that those members of the Northwestern University football team receiving athletic scholarships are employees, and not students, under the National Labor Relations Act. While Mr. Ohr apparently does not understand that a scholarship athlete can be both a student and an athlete, the reality is that these individuals are clearly part time employees based on any common law definition of employee. They receive compensation in the form of tuition as well as room and board for their commitment to play football. Playing football requires their individual (not delegated) performance and appearance at specific times and places. If they do not both perform and appear as required, they lose their scholarships. Let's be real here; Mr. Ohr is correct; these student athletes are employees under any reasonable definition of employee. (Let’s not shoot the messenger.)
Mr. Ohr’s ruling is allowing the scholarship holding football players at Northwestern to move forward in the creation of a union should they choose. Apparently as the non-scholarship athletes are not considered to be employees, they would not be allowed to become members of the union.
Whether it is best for college sports and/or the collegiate sports scholarship student athletes to be treated as employees is the important question. I think not.
There is a wow factor to most of us in the notion that a full football scholarship to Northwestern University is insufficient for a college athlete to be content with his world. Most of us would spend the rest of our lives bragging about how playing football generated a free education at one of the finest universities in the country.
There is a another wow factor to the notion that a college football player at U.C. Davis who is planning to spend four years at Davis studying chemistry on his way to becoming a veterinarian is now considered in the same breath with a defensive tackle playing in the Southeastern Football Conference planning to spend only three years at a major football power and then move along to the NFL.
Of course, the problems that accompany the determination of football players as employees are vast. The first problem is that football is not unique in its requirements that the student athlete perform and appear at specific places at specific times. Every student athlete with a full or a partial athletic scholarship would have to be defined as an employee by the NLRB. How about a union for the women's volleyball team that has four scholarships divided among twelve players with each getting a partial scholarship. And of course, there is the band, the cheerleaders, the university orchestra etc. By Mr. Ohr’s logic, anyone who receives a scholarship and is required to perform any activity for the university is a common law employee.
On another side of the coin is the reality that football and men's basketball pay for all of the other sports at most major universities. If the athletes in these sports unionize and that unionization results, as it must, in more money being spent on the athletes in those specific sports, the remainder of the programs at many universities may collapse. And don't for a second expect the universities to allocate more academic funds to support athletics; that will not happen. On many, if not most campuses, the academics would not shed very many tears if intercollegiate sports died a sudden death. Of course, many universities generate far less revenue than their expenses with respect to intercollegiate sports and unionization would only exacerbate existing problems.
The tragedy would be that literally thousands of athletes could or would no longer have the opportunity to become student-athletes if collegiate sports collapsed. Many of these kids would never see the inside of a major university. Many of these athletes are great students and statistics show they graduate at about the same rate as other college entrants. Of course, many of these student athletes that both enter and graduate from universities across the country are minority students. Would they gain admission and be able to pay for their education without college sports scholarships? I think not.
And lest we forget the general public who attend, watch and support both college athletics as well as college academics. Virtually every study shows that a successful athletic program has a very positive impact on general academic giving. Further, sports are often the glue that often holds town and gown together.
The political issue is easy. Let's skip all of the drama and get a bill through Congress specifically exempting universities and university athletes from the traditional definition of employee with respect to sports’ scholarships. In the long run, everyone will win. More deserving students will be educated, more academic contributions will flow to various universities and the general public will be able to maintain their relationships with their local universities through sports.
This legislative proposal should already be moving through Congress.
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