When news broke that Kain Colter had begun the initial steps of forming a union for NCAA players, I was very intrigued to say the least. It’s not very often that I get to combine my three most favorite topics in life: sports, the hypocrisy of the NCAA, and labor law. Now I won’t bore you with the history of the labor movement in the United States, and I won’t go off on the backwards logic that states that unions have run their course and no longer serve a purpose here the in US. Instead I’m going to focus on one key fact as it relates to college athletics: This is going to change EVERYTHING.
Being an employee gives you certain rights. Now in today’s corporate culture it may not always seem to be true, but generally speaking, we’ve all got it alright. We may not get that raise that we think we deserve, or we may have to put in some extra time a couple nights a week, but at least in the US, for the most part we don’t have to worry about dying because we didn’t have a break in 120 degree heat for 16 hours in the factory.
A little less than 80 years ago when the Wagner Act was passed it provided employees with a certain set of rights that allowed to them seek better wages, working conditions, working hours, and protection while they were on the job. Most importantly, it allowed them to do this without the fear of losing their job for doing so. It was beneficial for everyone involved. It protected employees that felt they were being mistreated and provided guidelines for business on what they can do to replace striking employees to keep their business running smoothly. As you may imagine, these rights only extended to employees of specific business and corporations. These rights most certainly didn’t extend to students playing football in college.
The term “Student Athlete” comes about in the 1950’s after Ray Dennison, a football player at Colorado died because of a head injury he sustained in a college game. After his death a law suit was filed on his behalf for a worker’s compensation claim. The school realized that they were up a creek because if he was considered an employee, in the same way any other student who was working on campus was, they were going to be found liable for his death... so they got creative. The defense they came up with was surprisingly basic; they simply stated for the court, “we’re not in the football business.” As a result the Colorado Supreme Court dismissed the case and the precedent was set that college football was not a business. In essence these individuals are not students playing a sport for fun because that would imply that they have the ability to walk away at any time with no repercussions. Additionally, they are not athletes, for that would imply that they are much closer to being professionals than the NCAA would like us to imagine. From there we get the wonderful term of “student athlete”.
(To save a whole lot of time for all of us, how about I just skip these next few paragraphs here where we point out how ridiculous of a notion it is that College Football, or College Athletics in general, isn’t a business. For good measure though, last year the NCAA took in over $5.1 billion dollars on football and basketball alone. On a more local level the University of Wisconsin took in nearly $104MM last year. Just for agreeing to play Alabama in 2015, Wisconsin will receive a check for $4MM from ESPN.)
As I alluded to above, all of the labor laws and regulations that we have today are made for employees, not for student athletes. This is a very deliberate move by the NCAA to shield itself from the liability from a variety of things. At the current state, Universities are under no legal requirement to cover any costs of injuries to athletes (workers comp), they can restrict or reject a players wishes to play for another institution (essentially a noncompete), they can drop a student’s scholarship at anytime essentially kicking them out of school if a student can’t afford the degree otherwise (which is a whole lot like at-will employment). That aside, Universities make money off of contracts with retailers, clothing manufactures, and multimedia deals off of player’s likenesses (much like a company makes money off the services that you provide). After all, you mean to tell me that it’s just a coincidence that when I search Bucky’s Locker Room for a football Jersey the numbers that pop up as examples include 25, 99, and 44? Come on, son.
The brilliance of this move by Kain Colter and other Northwestern players isn’t that they are going to necessarily be able to form a union. It’s that they are going to force the Supreme Court of the United States (Yes, this case will be going to the Supreme Court) to take a new look at the term “Student Athlete”. Is a person who receives compensation for performing a specific duty an employee? Does it matter at all that they also sign a contract that outlines their responsibilities in the job and bars them from plying their trade elsewhere?
One way or another, the Supreme Court’s ruling will dramatically change the NCAA and its relationship with athletes. If they become classified as employees, it will open Pandora’s Box and will have long last impacts on how/if we pay college athletes and what that model will look like in the future. If they rule in favor of the NCAA and back the status quo, it will be a damning blow to the “student athletes” and set the foundation down the road for a competitive organization to the NCAA.
In the end, much like most things in life/work/politics it will come down to a matter of fairness. Is a scholarship enough in terms of compensation for a student who plays football for a university? And outside of an education is there anything that a university owes to its athletes?
What do I think will happen? In the long run, I think the term “student athlete” will be a thing of the past. In that vein, I think that athletic scholarships will be a think of the past, making way for a salary that is about equivalent to the cost of attending school. By making these students employees of the University they can get the protections that they currently lack, and most importantly help begin to better protect the health of these athletes at a much younger age. Football is already in serious trouble, this would be a small step in the right direction.
College athletes shouldn’t be paid millions of dollars to play basketball or football. But as long as organizations like the NFL and NBA are not allowing individuals into their league and forcing them into college, they should at least get something close to same protections that I get sitting at my desk… especially because it’s very rare that a 250lbs linebacker spears me through my cube wall.