Grant-Final Amateurism is Dead in College Football

Amateurism is Dead in College Football: Student-Athletes Are University Employees

I. Overview: “Every time I try and call it a business you say it’s a game and every time I say it should be a game you call it a business.”1

“Big time” college athletes, specifically National Collegiate Athletic Association (NCAA)

Division I football players, who play revenue generating sports are not amateur athletes but are

university employees in accordance with the National Labor Relations Act (NLRA) found at 29

U.S.C. § 151-169. A brief background will be given on what amateurism is and why this ideal

should not be a part of the NCAA’s lexicon. The origin of the term “student-athlete” will be

investigated. This thesis will explore why the NCAA spends a great deal of time and money

persuading college fans and athletes alike, that college athletes are students first and athletes

second. Next, this thesis will demonstrate why these athletes are neither amateurs nor primarily

student-athletes. After demonstrating that these athletes are not amateurs, and using the NLRA,

as well as case law, this paper will explain why these athletes should be referred to as university

employees or employee athletes. Finally, the conclusion will explain the real reason college

athletes attain small victories against the NCAA ruling authority, but at every turn seem to lose

ground and remain victims of a system that refuses to treat their employees fair while continuing

to benefit financially by exploiting the talents these college athletes possess.

II. Introduction: “The boys go out and earn millions for their University. Everyone benefits except the players.” Bobby Bowden.2

1 Robert A. McCormick & Amy Christian McCormick, The Myth of the Student-Athlete: The College Athlete as Employee, 81 Wash. L. Rev. 72 (2006).2 Id. at 156.

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For the love of the game, this is why student-athletes play. For the love of the game, this

is why fans watch college football and other major college sporting events. The fans cheer their

teams to victory and reminisce about the past, when college life was parties, dates, and Saturday

afternoon football games. College football fans bathe themselves in the purity of these student-

athletes playing for the love of the game. There is something unsullied about competition free

from the ties of money in college sports. There is something about an athlete only playing a sport

as a hobby.3 College football is even better when the student-athletes enjoying their hobby are

really, really good.

As the ruling authority, the NCAA supports learning through sports by integrating

athletics and higher education to enrich the college experience of student-athletes.4 In order to

“create the framework of rules for fair and safe competition” the NCAA’s amateurism policy

must remain active.5 Founded in 1905 and known as the Intercollegiate Athletic Association, the

now NCAA developed rules for college football programs at a time when injuries were high and

universities were bringing in nonstudent ringers to compete against rival schools.6

The NCAA and their member schools make a great deal of money. The corporate

sponsors make even more money than the schools. These financial gains provide student-athletes

with athletic scholarships, and the opportunity to display their talents before their prospective

future employer. The NCAA spends over $2.7 billion to assist its participating schools in

3 Patrick Hruby, The Olympics Show Why College Sports Should Give Up on Amateurism, available at http://www.theatlantic.com/entertainment/archive/2012/07/the-olympics-show-why-college-sports-should-give-up-on-amateurism/260275/4 Taylor Riskin, Student-Athletes put Full-Court Pressure on the NCAA for Their Rights, 15 J. Marshall Rev. Intell. Prop. L. 296 (2016).5 Id.6 O’Bannon v. NCAA, 802 F.3d 4, (U.S. App. 2015).

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supporting their student-athletes.7 The financial and educational benefits provided to the players

by the NCAA outweigh the need to change their status from student-athletes to employees.

The term “student-athletes” identifies these college players first as students and then as

athletes. These are college students, who, in an effort to enhance their college experience,

participate in intercollegiate sports. They participate in the sport of their choosing because they

love that sport. Therefore, it is the duty of the NCAA and their university to maintain the

amateur status of all student-athletes, and to discourage any attempt to identify these athletes as

employees.

Student-athletes are neither primarily students nor amateur athletes. These athletes are

employees of their universities. The NCAA believes big time college sports must maintain a

clear delineation between collegiate and professional sports because there is an educational

component.8 The NCAA attempts to maintain the distinction by holding on to and enforcing its

very strict, jellyfish solid amateurism rules.

The idea of amateurism in the NCAA is a joke.9 While the NCAA, their affiliated

universities, and corporate sponsors count the millions of dollars they make each year from the

talents of the student-athletes, the NCAA controls and inhibits the actions of the athletes with a

set of rules as thick as a telephone book so their abilities can be cornered, marketed, and sold by

the school.10 These amateur, student-athletes are being compensated with “full” athletic

scholarships. These “full scholarships” are one year scholarships that have to be renewed

annually, and can be revoked for any reason (including injuries or personality conflict) and the

7 Riskin, supra, at 293.8 Hruby, supra.9 Dick Harmon: College amateurism outdated like Olympics, available at www.deseretnews.com/article/765592754/ College - amat .

10 Id.

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players have no insurance against losing their scholarship if they incur a permanent injury.11 To

say student-athletes are being compensated with an education when so many of them do not

graduate is a farce.12 Players endorse products, serve as billboards for shoe companies, are

featured in video games, and participate in school fundraisers where they sign autographs and

gear on behalf of the school.13 None of this resulting revenue goes to the student-athlete except

in the form of scholarships that do not cover the entire cost of attending college. It should be

noted that in 2014, the NCAA authorized their member schools to increase scholarships up to

the full cost of attendance.14

The joke of amateurism gets funnier when we realize that [former NCAA president]

Myles Brand said the notion of amateurism has outlived its usefulness within the NCAA, and

there is no “agreed-upon working definition of the concept” of amateurism within the NCAA.15

Ruling in the O’Bannon v. NCAA matter, concerning the NCAA’s stance on amateurism, Judge

Wilken wrote, “ …the NCAA has revised its rules governing student-athlete compensation

numerous times over the years, sometimes in significant and contradictory ways. Rather than

evincing the association’s adherence to a set of core principles, this history documents how

malleable the NCAA’s definition of amateurism has been since its founding.”16

Student-athletes are not students seeking the enjoyment of a life enriched through a

vibrant college experience. They are athletes attending college on an athletic scholarship hoping 11 Cecil A. Grant Jr., Student Athletes should be paid to play, (April 9, 2012) (unpublished manuscript) (on file with author).12 Elaine McArdle, Pay for Play, 65 Harv. L. Rev. 26 (2014).13 Patrick Hruby, The Olympics Show Why College Sports Should Give Up on Amateurism, available at http://www.theatlantic.com/entertainment/archive/2012/07/the-olympics-show-why-college-sports-should-give-up-on-amateurism/260275/14 O’Bannon 802 F.3d at 6. 15 Hruby, supra.16 Stewart Mandel, O’Bannon ruling deals crushing end to amateurism in NCAA athletic, available at http://www.foxsports.com/college-football/story/o-bannon-decision-deals-decisive-end-to-amateurism-in-ncaa-athletics-080814

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to make it to the ranks of a professional athlete. While the focus of this paper is on Division I

football players, Division I basketball helps make this point crystal clear. Most gifted college

basketball players are drafted into the National Basketball Association (NBA) after one year of

college; however, they do not learn anything in one year of college, or “enjoy a life enriched

through a vibrant college experience,” especially when they spend most of that year playing

basketball.17

At Brown University, where athletic scholarships are not offered, Nick Hartigan who

holds the Ivy League record for career rushing touchdowns said the fact he was a football player

controlled every single aspect of his life for the four years he was at Brown.18 Continuing, he

laments, “It really is a full-time job while you are there.”19 Student-athletes are not amateurs and

are not receiving the educational benefits the university has to offer. For example, many

student-athletes are told they cannot take courses that will conflict with their practice schedule.20

Knowing that ninety-eight percent of the student-athletes never make it to the professional ranks

forces these players to make a decision about their education that will affect the rest of their

life.21

III. Background: “ Student athletes are amateurs in an intercollegiate sport, and their participation should be primarily motivated by education and the physical, mental, and social benefits. Student participation in intercollegiate athletics is an avocation and student-athletes should be protected from exploitation by professional and commercial enterprises.”22

17 McArdle, supra.18 Id.19 Id.20 Id.21 Id.22 Tyler Dumler, Amateurism Interplay Between Olympic Excellence and NCAA Eligibility, 15 U. Denv. Sports & Ent. Law J 27 (2013).

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Amateurism and amateur status are key buzzwords used by the NCAA to maintain a financial

grip on revenue generating collegiate sports. By manipulating their rules, the NCAA makes a

desperate attempt to convince both fans and players that there is a level of reverence and purity

when watching or playing competitive athletics as amateurs. The NCAA makes every attempt to

convince the public that “amateur competition is a bedrock principle of college athletics.”23 The

NCAA contends that amateurism has been one of its core principles since its founding and that

amateurism is a key driver of college sports’ popularity with consumers and fans. 24The NCAA

ties the rope of amateurism tightly around the necks of athletes who want to play Division I,

revenue generating, college football. The NCAA Bylaws declare, “Only an amateurs student-

athlete is eligible for intercollegiate athletics participation in a particular sport.”25 The Bylaws

clearly state a student-athlete must retain “amateur” status because the NCAA considers amateur

competition a core principle for college athletics.26 The NCAA constructs this clear delineation

between amateur and professional sports because their primary goal is to place “academics and a

well-rounded education above athletics.”27

One misconception about amateurism in the NCAA is that student-athletes do not receive

some type of compensation. College athletes receive scholarship funds, which are used to help

defer the cost of their college education. These scholarship funds are given to student-athletes

based only on athletic ability.28 Remuneration for amateur athletes is even supported by The

Amateur Sports Act of 1978 that administers a trust fund allowing amateur athletes to receive

23 NCAA definition of amateur, http://www.ncaa.org/student-athletes/future/eligibility-center24 O’Bannon 802 F.3d at 9.25 Riskin, supra. at 283. 26 Id. at 284.27 Id.28 http://legal-dictionary.thefreedictionary.com/Amateur+Athletes

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funds and sponsorship payments without losing their amateur status.29 Over time, that definition

of amateur was revised. The NCAA’s definition of amateurism is viewed as “malleable,”

changing frequently in significant and contradictory ways and is not in fact, a “core principle” of

the NCAA.30

A new version of amateur was formulated in old England. According to Olympic historian,

Bill Mallon,

“Amateurism really started when the (unwashed day-laboring masses), who were rowing boats on the Thames for a living started beating all the rich British aristocrats. That wasn’t right. So they started a concept of amateurism that didn’t exist in ancient Greece, extending it more and more to the notion of being a gentleman, someone who didn’t work for a living and only did sport as a hobby.”31

This concept was copied by a host of American schools, which gave birth to college sports.32

Historians say the NCAA had its roots in this idea, which had less to do with lofty purism of

amateurism than it did with enforcing a social caste system.33

Recent case law shows that the NCAA’s rules have been more restrictive than necessary

to maintain a tradition of amateurism in support of the college sports market.34 Now, in the

NCAA, amateurism bans any interaction or any type of pay from a professional team, prize

money above actual and necessary expenses, benefits from agents or prospective agents, and

delayed initial full-time collegiate enrollment to participate in organized sports competitions.35

The NCAA pledges its loyalty to amateurism through the creation of the 15-3a Form where

student-athletes pledge their commitment to amateurism.36 This is the NCAA’s attempt to protect

29 Id. 30 O’Bannon 802 F.3d at 9.31 Harmon, supra.32 Id. 33 Id. 34 O’Bannon 802 F.3d at 24.35 Riskin, supra. at 283.36 Id. at 288.

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the brand and through amateurism, allow student athletes to gain a college education while using

the skills they receive from playing competitive sports to help them excel in a future career.37

Pure amateurism is an ideal the NCAA clings to; however, it is an ideal that has fallen

victim to giant corporations and the allure of ever growing profits that fill the pockets of

whomever will worship the false idol of amateurism.38 Once the NCAA accepts the fact that

amateurism in the purist form has not been a part of college sports for years, and they remove the

chains of amateurism from the student-athlete, one can begin to view the athletes as employees

of their respective universities.

The NCAA’s crafted term “student-athlete” needs to be removed. The term “student-

athlete” was born of the NCAA’s swift and alarmed reaction to a judicial determination in 1953

that certain college athletes were employees and entitled to statutory benefits under state law.39

The case in point was University of Denver v. Nemeth, whereby the Colorado Supreme Court

upheld that Ernst Nemeth, a football player at the University of Denver, was an “employee” thus

obligating the university to provide workers’ compensation for his football injuries.40 By

emphasizing the identity of athletes as “students,” the NCAA endeavored to diminish any

tendency to characterize them as “employees.”41 In 1956, universities were offering full athletic

scholarships, but realized that allowing full scholarships as compensation for athletic services

could reveal the employer-employee-like nature of the college athlete relationship that would

expose these universities to liability for workers’ compensation.42

37 Id. 38 R. Emmett Tyrrell, Jr., Olympic ideal of Amateurism, available at http://www.nysun.com.opinion/olympic-ideal-of-amateurism/63995/

39 McCormick & McCormick. supra at 83. 40 Id.41 Id. at 84. 42 Id.

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A continued revision of terms geared towards keeping athletes from being identified as

employees appeared in 1963 when the California Court of Appeals ruled in Van Horn v.

Industrial Accident Commission that a football player who died in a plane crash while returning

from a game was an employee of the university.43 The court viewed Van Horn’s scholarship as a

contract of employment between the school and the player, noting that the scholarship served as

compensation for his athletic services.44

The NCAA did not and still does not want to identify athletes as employees. They do not

want to be responsible for probable medical expenses. The incestuous manipulation of the terms

amateurism and student-athlete keeps the NCAA profits in the family while giving birth to still-

born athletes trapped in a system that insists its top concern is for its athletes and their education.

How can this be true, when neither the NCAA nor any given school is responsible for a student’s

medical or other expenses if he’s injured?45 How can this be true when an athlete will lose his

scholarship if injured; thus, for most students, ending their opportunity to receive a college

degree?

This combination of the NCAA’s concept of amateurism and their continued

manipulation of the term student-athlete specifically protects the NCAA from liability.46 “You’re

an amateur athlete, which means you are not an employee, which means you’re not entitled to

worker’s compensation or other benefits. So you get a scholarship and you take your chances,”

says Peter Carfagna, director of Harvard Law School Sports Law Clinic.47 With the

condescending goal of protecting their cash cow, while manipulating theses young athletes, the

43 Id. at 85.44 Id. 45 McArdle, supra.46 Id.47 Id.

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NCAA “encourages” its members to use the following language in their athletic scholarship

forms:

“This award is made in accordance with the provision of the Constitution of the [NCAA] pertaining to the principles of amateurism, sound academic standards, and financial aid to student athletes… Your acceptance of the award means that you agree with these principles and are bound by them.”48

The purpose of these above-described actions by the NCAA is clear. First, by insisting the

athletes are characterized as amateurs the NCAA is able to mask what they are actually doing,

which is employing players to provide athletic services in exchange for compensation.49

Secondly, the creation of the term student-athlete by the NCAA is solely to obscure the reality of

the college athlete employment relationship and to avoid the universities’ legal responsibilities as

employers. 50 Except for a few past and present college athletes, who voice their concerns about

this matter, the majorities of college athletes, in my opinion, do not understand or care about the

significance of this issue. The athletes have neither control nor power in this matter, and they

may be afraid to protest since the NCAA holds all the cards.51

The athletes do not have a choice concerning how they are identified; however, they do have

a choice, to some extent, in accepting the role as student-athlete. No one is forcing these players

to participate in these “big-time” college programs. The athletes participate because, for many,

this is the only affordable way they can attend an elite university and their only chance to play

sports that may provide them with the opportunity to be considered at the professional level.

Most players are unaware of their market value. Raised in the myth of the student-athlete, these

players enter into servitude by the thousands every year.52 Accepting an athletic scholarship

48 McCormick & McCormick. supra at 85-86.49 Id. at 86.50 Id.51 McArdle, supra.52 McCormick & McCormick. supra at 157.

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creates a dilemma for the majority of college athletes who are minorities or from low-income

families. Should they turn down this great opportunity knowing there are definite elements of

servitude and knowing that this system carries “the unmistakable whiff of the plantation?”53

The temptation is to expound on the racial aspect of the NCAA system and to point out that

the major revenue generating college sports, (football and basketball) have a high degree of

minority student participation. Comparing the NCAA’s system to the plantation is tempting. The

racial aspect of this exploitation by the NCAA is a valid argument; however, including this

aspect of the NCAA system into this paper, does nothing to strength the argument that student-

athletes should be identified as employees. The racial argument creates a distraction that would

cause this paper to lose the legal traction required to remain credible.

The athletes’ compliance to the amateurism rules and acceptance of the moniker “student-

athlete” indicates the athletes do not care how they are identified and how this may affect their

future. Racial issue or not, the athlete has one desire which is to become a professional athlete.

The NCAA has done a remarkable job of marketing this fiction, convincing players to bask in

the bright, but brief, glow of their status as campus heroes, while nurturing their unrealistic

dreams of glory, and obscuring the reality of their exploitation.54 Demonstrating that these

athletes are neither amateurs nor primarily students transitions this discussion into why student-

athletes should be correctly identified as university employees.

IV. Statement of the Issues: “I used to go along with the idea that football players on scholarship were “student-athletes,” which is what the NCAA calls them. Meaning student first, an athlete second. We were kidding ourselves, trying to make it more palatable to the academicians. We don’t have to say that and we shouldn’t. At the level we play, the boy is really an athlete first and a student second.” Paul “Bear” Bryant 55

53 McArdle, supra.54 McCormick & McCormick. supra at 157.55 Id. at 86.

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The primary issue we must resolve is changing the identification of college athletes from

student-athlete, to university employee. There is a need to demonstrate these players are athletes

by showing that the educational aspect of their college journey is not a real opportunity. Once

determined these players are athletes and not primarily students, one can be argue that these

players should be identified as university employees. The NCAA does a great job in marketing

the idea that the primary focus as it concerns student-athletes is for them to obtain a great

education and enjoy a vibrant college experience. The NCAA continues their propaganda by

insisting that college sports are secondary to all other college experiences. As was discussed

earlier, the NCAA created and now holds on to and manipulates the term student-athlete,

investing an unbelievable amount of time into selling the student aspect of this term.

Being a student requires more than mere enrollment.56 Being a student encompasses actually

engaging in learning, education, and academic pursuits.57 However there is too much evidence

supporting the fact that the relationship between the athlete and their university is not primarily

an educational one.58 NCAA schools already operate with a “win at all cost” mentality that

threatens educational standards.59 Job retention and salary bonuses for coaches are tied to

winning games, not graduation rates.60 Theses coaches feel compelled to recruit athletes ill

equipped for college, retain academically troubled students or even overlook, if not encourage

academic fraud.61 All of these factors prevail over the educational interest of the students.62 The

commercialization of college sports and the concomitant emphasis on winning has without a

56 McCormick & McCormick. supra at 122.57 Id.58 McArdle, supra.59 Lee Goldman, Sports and Antitrust: Should College Students Be Paid to Play, 65 Notre Dame L. Rev. 206 (1990). Available at: http://scholarship.law.nd.edu/ndlr/vol65/iss2/3

60 Id. at 241.61 Id.62 Id.

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doubt denigrated the educational component of the student-athlete experience.63 As a result

student-athletes feel obligated to spend more time on the practice field than in the classroom.64

NCAA member schools have already sacrificed educational values to economic/commercial

interest.65 College athletes in many Division I football programs are students in name only and

do not spend the majority of their time engaged in learning, education, and academic inquiry, but

rather in the furtherance of their work as athletes.66

V. Legal Analysis: The NCAA adopted and mandated the term “student-athlete” purposely to buttress the notion that such individuals should be considered students rather than employees.”67

Universities employ professors, support staff, and administrators at their schools. The

question is whether the relationship between the university and the student-athlete is an

employment relationship in which the athletes are employees.68 In order to show that student-

athletes should be correctly identified as university employees, we must discuss the NLRA, the

cornerstone of U.S. labor policy.69 This statute, 29 U.S.C. §§ 151-169, gives organizing and

collective bargaining rights only to employees, so the question of whether a particular person is

or is not an employee is of central importance in administering this statute. 70 Proving this point

is of the utmost importance. Discussions as to whether student-athletes should receive a salary or

additional compensation for their efforts on the fields of competition falls flat unless one can

properly categorize the student-athletes as employees. Once properly identified as employees,

63 Id.64 Id. at 242.65 Id.66 McCormick & McCormick. supra at 122.67 Id. at 84.68 Id. at 96.69 Id. at 87.70 Id. at 89.

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student-athletes will receive all the benefits afforded an employee, to include proper

compensation for their efforts.

This analysis will look at the NLRA’s standard for identifying a person as an employee based

on its common law meaning. Also included, is a look at the National Labor Relations Board

(NRLB) statutory test for students wanting to be recognized as employees. Before moving into

that discussion, it is important to review a few definitions of “employee.”

Black’s Law Dictionary defines employee as a person in service of another under any

contract of hire, expressed or implied, oral or written, where the employer has the power or right

to control and direct the employee in the material details of how the work is to be performed.71

In Nationwide Mutual Insurance Co. v. Darden, the Supreme Court ruled that for Federal

laws that do not have a clear definition of “employee,” the relationship between employer and

employee should be based on the common law test that focuses on who has the right to control

the employee.72 In New York University (NYU), the NRLB wrote that the term “employee:

reflects the common law agency doctrine of the master-servant relationship, and this relationship

exist when a servant performs services for another under the other’s control or right of control,

and in return for payment.73 Although the NLRB definition and ruling in NYU was overturned in

Brown, this discussion will demonstrate why Brown supports the thesis that student-athletes are

university employees. For clarification, the NYU and Brown cases were brought before the

NLRB as matters where graduate assistants wanted to be recognized as employees.

Using the Black’s Law Dictionary definition of employee, it is clear student-athletes are in

the service of another. In this case, the “another” in general is the NCAA, but more specifically

71 Charles J. Muhl, What is an employee? The answer depends on the Federal law. Available at www.bls.gov/opub/mlr/2002/01/art1full.pdf

72 Id. at 5.73 McCormick & McCormick. supra at 94.

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the universities and their college coaches. The contract is the amateurism certification contract

with the NCAA and the university.74 It is also implied that the athlete agrees to play a specific

sport in exchange for an athletic scholarship.

In 1948, the NCAA outlawed scholarships based solely on athletic ability; however, in 1956

the NCAA membership sanctioned scholarships based solely on athletic ability.75 The NCAA

authorized the use of scholarship for athletes regardless of need and explicitly authorized,

formalized, and legitimized the practice of using scholarships to compensate college athletes for

their athletic services alone.76

The common law definition of employee requires the employer to compensate the alleged

employee for services rendered.77 There is no denying the scholarship is a transfer of economic

value to the student-athlete in exchange for his athletic services.78 Once universities began

compensating students solely for their athletic services, they fulfilled the compensation

requirement of the common law test.79 Finally, based on the definition of “employee” provided

by Black’s, the coaches have the power and the right to control and direct the student-athlete in

the material details of how they shall perform while at the university.

The courts as well as the NLRB have developed what is called the common law test for

defining employee. This test is centered on who has the right to control the work process80 or

what degree of control the alleged employer maintains over the working life of the alleged

74 http://www.ncaa.org/student-athletes/future/eligibility-center

75 McCormick & McCormick. supra at 111.76 Id.77 Id. at 108.78 Id. at 112.79 Id.80 Muhl supra at 5.

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employee.81 For this discussion the university football coaches are the alleged employers and the

student-athletes are the alleged employees.

Studies document that from the time the college football season starts in September until it

ends more than fourteen weeks (but as many as nineteen weeks later), student-athletes commit

close to fifty-three hours per week to football for a home game and as many as eighty hours per

week for an away game.82 The hours noted are in addition to class time, study time, and ten hours

per week of mandatory study hall time which is part of the NCAA’s effort to deflect criticism

over low graduation rates.83 Earlier in this discussion it was noted that scholarships are not four-

year scholarships, but instead are one-year renewable scholarships. Understanding these

scholarships are solely managed and monitored by the coaches is a clear example of the control

the coaches have over the athletes. This system provides a method for the coaches to maintain

pressure on the student-athlete throughout his time at the university.84 If an athlete does not play

well, or if a better athlete arrives at the university, or even if the athlete is injured, the coach may

refuse to renew the athlete’s scholarship.85

This level of control does not end once the season ends. In the spring, there are conditioning

programs at many universities that occur six weeks prior to the NCAA-sanctioned spring

training.86 With the pre-season camp opening in early August, players are encouraged not to

leave the campus during the summer; however, with permission from the coach, they may

leave.87 Players are also encouraged to take summer classes but not classes during the second

81 McCormick & McCormick. supra at 90.82 Id. at 99.83 Id. at 100.84 Id. at 113.85 Id. at 116.86 Id. at 101.87 Id. at 102.

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summer session because they would conflict with official practices.88 As an example, Robert

Smith, former running back for Minnesota Vikings and pre-med student while at Ohio State,

needed two afternoon labs in the same semester. Since the labs conflicted with practice,

coaches suggested that he drop the labs because of the commitment he made to play

football. Smith took the classes but was forced to sit out the season as a red shirt athlete.89

As indicated, Smith went on to become a professional football player. An athlete of lesser

talent probably would not have gotten away with doing what Robert Smith did. This also

suggests that the primary purpose for an athlete’s attendance at college is not to receive an

education but to play the sport their scholarship is associated with.

In the years a university football team does not attend a post-season bowl game, their

commitment to the football program is approximately 240 days; if they go to a bowl game the

number increases to as many as 262 days.90 The average, employed, American worker toils 250

days per year.91 Clearly the university football coaches have a tremendous amount of control

over the athletes. No other university employee is even remotely subject to the degree of control

of the student-athlete, and this degree of control over any employee would be unimaginable.92

The athlete is dominated, managed, and controlled; and, they do not receive a wage

commensurate to their contribution as expressed in dollars earned by the university.93 If any

group of persons may be called “employee’ based upon the degree of control exercised by the

university, it must be the student-athletes enrolled there.94

88 id.89 Dennis A. Johnson Ed.D., & John Acquaviva, Ph.D. Point/Counterpoint: Paying College Athletes available at http://thesportjournal.org/article/pointcounterpoint-paying-college-athletes/

90 McCormick & McCormick. supra at 99.91 Id. at 104.92 Id. at 108.93 Johnson & Acquaviva supra at 6.94 McCormick & McCormick. supra at 108.

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Next it must be shown that student-athletes meet the statutory definition of employee as

defined by the NLRA. This requires an analysis of the NLRB’s most recent pronouncement on

the status of students as employees in Brown University. 95 Brown presents the issues of whether

graduate student assistants who are admitted into, but not hired by the university, and for who

supervised teaching or research is an integral component of their academic development, must be

treated as employees.96

Previously, the Board in NYU concluded that graduate student assistants are employees under

Section 2(3) of the Act stating they are statutory employees.97 Section 2(3) of the Act, defines

the term employee to,

“…Include any employee, and shall not be limited to the employees of a particular employer, unless the Act [this subchapter] explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.”

The Board in Brown subsequently overruled the NYU decision.

The Brown Board examined four factual criteria to decide whether graduate assistants were

statutory employees.98

The first criterion is the status of graduate assistants as students.99 In Brown, the Board

pointed out the common thread in the Boards’ opinions concerning this matter in earlier

decisions. In Adelphi University, 195 NLRB 639 (1972) and Leland Stanford, 214 NLRB 621

95 Id. at 120.96 Brown University, 342 NLRB 42 (2004) at 483.97 Id.98 McCormick & McCormick. supra at 120.99 Id. at 120.

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(1974), the Board held that the graduate assistants are not employees within the meaning of

Section 2(3) of the Act but that they are “primarily students.”100 In support of these conclusions,

the Board cited to the following…(2) they are required to perform research to obtain their

degree; (3) they receive academic credit for their research work; and (4) while they received a

stipend, the amount was not dependent on the nature or intrinsic value of the services performed

or the skill or function of the recipient….101 Additionally, the Board ruled that “It is clear to us

that graduate student assistants… are primarily students and have a primarily educational, not

economical relationship with their university.”102 The Board goes on to say that students serving

as graduate student assistants spend only a limited number of hours performing their duties, and

it is beyond dispute that their principal time commitment at Brown is focused on obtaining a

degree and, thus, being a student.103 The Board determined the graduate student assistants are

primarily students because their service is part and parcel of the core elements of the Ph.D.

degree, and their status as a graduate student assistant is contingent on their continued enrollment

as students.104 The Brown Board acknowledged that students who perform services unrelated to

their educational programs may properly be characterized as employees.105

Clearly the athletic services provided by student-athletes are predominantly unrelated to their

educational programs.106 As pointed out in earlier portions of this paper, student-athletes commit

anywhere from fifty-three to eighty hours per week solely to football, which illustrates that their

principal time commitment is not focused on obtaining a degree or being a student.107

100 Brown University, at 487.101 Id. at 487.102 Id. at 487.103 Id.104 Id. at 488.105 McCormick & McCormick. supra at 121.106 Id.107 Id.

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Additionally, players are encouraged not to take classes that interfere with the commitment they

made to play football. This shows without a doubt that student-athletes are not primarily students

and that their primary focus is on athletics not academics.108 The Board also strongly suggested

that being a student requires more than mere enrollment, but encompasses actually engaging in

the activities of learning, education, and academic pursuits.109 It has been demonstrated that these

student-athletes do not spend the majority of their time engaged in learning, education, and

academic inquiry, but rather the furtherance of their work as athletes.110

The second factor from Brown is the degree to which the graduate assistants’ work furthered

their education. The Board noted that oftentimes the work the students perform as graduate

assistants at Brown University, is a condition required by twenty-one of the thirty-two

departments that offer Ph.D. degrees.111 Thus for the majority of graduate students, teaching is so

integral to their education that they will not get the degree until they satisfy that requirement.112

The student-teacher relationship is based on the “mutual interest in the advancement of the

student’s education,” while the employer-employee relationship is “largely predicated on the

often conflicting interest” over economic issues.113

If one take this second factor and applies it to the student-athlete one sees that the services

provided to the university by the athletes are wholly unrelated to their education and their degree,

and resembling an employer-employee relationship.114 The coaching staffs are not interested in

the advancement of the student’s education while they are on the football team. The athletic

108 Id. at 122.109 Id.110 Id.111 Brown University, at 488.112 Id.113 Id.114 McCormick & McCormick. supra at 124.

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scholarship that is solely awarded for athletic abilities is consideration for those athletic skills,

not for the student-athletes educational endeavors.115

The third criterion the Board used in Brown to conclude that graduate students are not

university employees is the nature of the graduate student assistants’ relationship with the

faculty. At Brown University, faculty oversaw the functions graduate assistants carried out and

decided whether graduate assistants’ scholarships would be renewed.116 The Board pointed out

that the process of evaluating these graduate students was extremely personal, not only for the

students, but also for the faculty.117 Faculty members who oversaw the teaching of the graduate

assistants were the same individuals who taught them, supervised their studies, and evaluated

their dissertations.118 The exact opposite occurs for the student-athlete. The coaches and the

athletic staff, who are not faculty members, supervise the athletes’ services, demonstrating that

players’ work as athletes is not educational in nature.119 In fact the decision of whether or not to

renew an athletes scholarship is solely in the hands of the coach and cannot fairly be described as

academic.120

The fourth and final element the Brown Board relied upon asserts that the financial rewards

graduate assistants received were not pay for teaching and research services performed but were

merely financial aid to permit attendance at Brown.121 This element requires a bit of review

before we can point out the error in the reasoning of the Board. The key point the Board wants

to make is that these scholarships provided to students at Brown are only financial assistance

enabling students to attend college and that these scholarships are unrelated to the quality or

115 Id. at 124.116 McCormick & McCormick. supra at 125.117 Brown University, at 489.118 McCormick & McCormick. supra at 125.119 Id. 120 Id. at 126.121 Id.

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value of services rendered.122 This is completely erroneous. It would be hard to believe that a

university would continue to provide financial assistance to a graduate assistant who did not

teach or provide research services as required. The Board suggested that because the amount of

aid provided to graduate assistants is equal to or similar to the amounts received by students

which are not required to teach or do research that these funds are financial aid and not

compensation.123 Even if this line of thinking were accurate, suggesting that a graduate assistant

would receive the same financial benefit without having to provide services, the athlete’s

situation is vastly different.124 Athletic scholarships are never given without the requirement of

athletic services being rendered.125 Regardless of talent level, all scholar athletes must participate

in all team functions or run the risk of losing their athletic scholarship.126 Under NCAA rules,

college athletes may lose their scholarships if they fail to perform their athletic services.127

Additionally, an athlete will lose their scholarship if they withdraw from their sport.128 The

NCAA requires schools to refer to the agreement between the university and the athlete as a

scholarship rather than an employment contract and Article 12.1.1 of the Division I Manual

makes it clear that an athlete is not permitted to receive “pay” for athletic services.129

As hard as the NCAA tries to hide behind the words of their Manual, it is clear that scholar

athletes are compensated because of their athletic abilities and will only continue to receive

compensation as long as they continue to perform to a satisfactory level in their sport.

122 Id. at 127.123 Brown University, at 489.124 McCormick & McCormick. supra at 128.125 Id. at 128.126 Id.127 McCormick & McCormick. supra at 128.128 Id. at 127.129 Id.

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The decision in Brown is grounded in the idea that the relationship between the graduate

assistant and the university is not an economic one but primarily an academic one.130 The

relationship between the student-athlete and their universities, by contrast, is nearly exclusively

economic and decidedly not academic.131 Therefore, by virtue of the Board’s own reasoning in

Brown, student-athletes are employees under the National Labor Relations Act.132

IV. Solution: “Things were falling apart. The system would not hold. For decades, it had clung to the amateur ideal, enforced by a watchful governing body: Athletes could not receive material gain, directly or indirectly, for playing sports. Yet on the way to a grubby Gomorra of unfettered sports commerce, a funny thing happened: The watered-down Olympics didn’t exactly sink to the bottom of the Marianas Trench.” 133

Many solutions are available to the NCAA concerning this issue of addressing student-

athletes as university employees. The primary concern is the NCAA and college sports will fade

away if the athletes become compensated employees. Another concern is how to pay them.

While the NCAA creates new definitions of amateurism and insist college sports will disappear

into the black hole of professional sports, they turn a blind eye to the fact that by holding onto

amateurism and pretending a vibrant, competitive market for collegiate athletic talent does not

exist, they NCAA has simply pushed the campus sports economy underground.134

The NCAA wants the public to believe if they recognize athletes as employees and have

to compensate them as such that this giant sports entertainment entity will soon disappear, just as

the Olympic games should have. The belief was that if amateurism were removed from the

Olympic games, the games would be destroyed in eight years.135 The Olympics have gone from

being an organization with approximately $200,000 on hand in 1980 to a multi-million dollar

130 Id. at 130.131 Id.132 Id.133 Hruby, supra.134 Id.135 Id.

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enterprise.136 Since the NCAA strongly believes these student-athletes should not be recognized

as university employee, they should consider the model of the Olympics and at least allow the

student-athletes to profit from their fame and image like everyone else in America.137

The Olympics provide the perfect model for what the NCAA should consider, which is to

stop worshipping the false ideal of amateurism.138 College players are only amateurs based on

the definition contrived by the NCAA. College athletes are not students who enjoy and

experience the wonders of college life. The power of the myth of the student-athlete is

undeniable and continues to richly serve the economic interests of the NCAA and many other

participants in major college sports.139

V. Conclusion: “The relationship between athletes and their universities could become more academic than economic. But...to do so would harm their economic interests- their ability to dominate on the field, and thus to generate tens of millions of dollars.”140

It is all about money. The NCAA’s desire to not recognize college athletes, as employees

is not based on a longing to keep college football pure and free from the corruption money will

bring. The NCAA’s desire is not based on their wish to keep the sport safe from corporate greed

and exploitation. Although the NCAA says otherwise their actions do not support the stance that

“the first duty of a university is to educate, not hire (or pay) entertainers.”141 The NCAA is not

really concerned about losing the college fan, because the college fan does not really care if a

college athlete is recognized as an employee of the university, as long as the product on the field

is of the highest caliber. The NCAA’s primary goal, its only goal, is to control the athletes and

136 Id.137 Id.138 Id.139 McCormick & McCormick. supra at 157.140 Id. at 153.141 Grant, supra at 5.

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capitalize on the riches the organization obtains off the backs of the free labor mischaracterized

as student-athletes.

College athletics has been estimated to be a $60 billion industry with only one group of

persons denied the full financial fruit of this bountiful enterprise- the players themselves.142 The

college sports industry is far from amateur.143 It is an extremely profitable commercial enterprise

with student-athletes generating tremendous wealth for these schools through their skill and

effort.144 Finding any revenue generating college program that is not sponsored by a large

company like Nike, Under Armor, or Gatorade, is difficult.145 Recently, UCLA agreed to a

fifteen year, $280 million shoe and apparel deal.146 ESPN, the giant sports broadcasting network,

agreed to pay $190 million per year for six years, or $1.1 billion, to continue broadcasting Big

Ten football and basketball games.147 Money pours into the pockets of the NCAA and the

member universities thru ticket sales, and other operational aspects of managing a successful

athletic program.148 Winning seasons generate revenues from the sales of athletic apparel and

millions of dollars of indirect revenue from alumni donations not to mention increased

enrollment.149 When the University of Florida won the national championships in both football

and basketball in 2006, they received 25,400 applications the following year, an eight percent

142 McCormick & McCormick. supra at 76.143 McCormick & McCormick. supra at 131.144 Id.145 Grant, supra at 3.146 Tim Daniels, UCLA, Under Armor Agree on 15-year Shoe, apparel Deal, available at http://bleacherreport.com/articles/2642090-ucla-under-armour-reportedly-agree-on-15-year-shoe-apparel-deal? 147 Sam Cooper, Big Ten, ESPN agree to new media rights deal available at http://sports.yahoo.com/blogs/ncaaf-dr-saturday/report--big-ten--espn-agree-to-new-media-rights-deal-140200506.html;

148 McCormick & McCormick. supra at 132.149 Id. at 134.

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increase over the previous year.150 The evidence demonstrates that student-athletes are not

primarily students, which is the main criterion in Brown, as to why the graduate assistants were

not labeled as employees.151 The NCAA’s insistence of labeling college athletes as student-

athletes is a clear attempt to cover up their true function as employees in the commercial college

sports entertainment industry.152 In his new e-book about the NCAA, “The Cartel,” Pulitzer

Prize-winning author Taylor Branch, vilifies what he sees as the greed and hypocrisy that reward

just about everyone in college sports except the players.153

College players are only amateurs based on the definition contrived by the NCAA.

College athletes are not students who enjoy and experience the wonders of college life. The

power of the myth of the student-athlete is undeniable and continues to richly serve the economic

interests of the NCAA and many other participants in major college sports.154

College athletes at revenue-generating universities are university employees in

accordance with the NLRA, because they meet both the common law and statutory standards for

the classification.155 Student-athletes are common law employees because they are compensated

for their services with athletic scholarships that are a quid pro quo for athletic services provided,

they are under complete control of their employers (coaching staff) to which they are

economically dependent and they are statutory employees because their relationships with their

respective universities are not primarily academic but rather overwhelmingly commercial.156 This

overwhelmingly commercial aspect of their relationship refutes any effort to insist the athletes be

considered amateurs.

150 Grant, supra at 3.151 McCormick & McCormick. supra at 135.152 Id.153 McArdle, supra.154 McCormick & McCormick. supra at 157.155 Id. at 155.156 Id.

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The athletes dedicate all of their energy toward improving their skills and making the

team they play for a contender. The athlete sacrifices the opportunity to obtain a quality

education, and the NCAA and their university encourage this behavior. Though the words of the

NCAA and the universities say they care about the academic goals of the athlete, their actions

tell a different story. The powerful NCAA has the louder, stronger, more persuasive voice while

the athletes must follow the mountain of NCAA rules that routinely change. The voice of the

athletes are timid and very low whispers. The NCAA sells dreams many of these athletes are not

equipped to attain -- dreams of prosperity in the professional ranks of sports or a college degree

they will never have the chance to focus upon.

The root of this issue is lots and lots of money, made by the NCAA, the universities,

corporations, and university coaches. The NCAA has the resources to continue to insist on

labeling college athletes as student- athletes and not employees.157 The student-athlete myth has

and will continue to fill the pockets of the NCAA and its members with more money than they

can spend. Attempting to destroy the flow of money that feeds the NCAA is too great a task.

Society has to wake up to the injustice being perpetrated on the public and the athletes by the

NCAA. They must embrace the power of the law and expose the false labeling of student-

athletes as primarily students and work passionately to expose the truth, which under the law is,

student-athletes are employees and should be afforded the protections and benefits associated

with this truth.158

157 Id. at 157.158 Id.

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