Written by Nirih Kamplimath
Introduction
Collegiate sports, while paving the way for student athletes to assume their future goals of professionals, is in itself a very challenging and profitable endeavor. The enormous efforts by these student athletes in maintaining their peak physical shape year-round while simultaneously balancing the mental pressure of their sport and student workload goes largely unnoticed. These efforts not only pay dividends for the athletes themselves but also generate massive revenues for institutions like the NCAA and the various organizations that sponsor these NCAA teams. The Division I institutions of the NCAA alone generated around 15.7 billion $ in 2020.
It is in this context, it becomes pertinent to understand why it is essential to understand why these student athletes should be accorded the status of ‘employees’ under the relevant labor laws. This can be illustrated perfectly through an example of a prominent student athlete, Trevor Lawrence. He was considered a “Generational Quarterback”, and played for the Clemson Tigers in his college career. Some say that he has one of the most sensational careers a quarterback ever had in college football, and led his team to a National Championship. This was primarily because of the immense dedication and sincerity he had for the sport. Consequently he was the Number 1 pick in the NFL Draft, 2021 and started playing for the Jacksonville Jaguars. Despite bringing numerous laurels for his college, he received only academic and educational benefits, as opposed to any sort of monetary compensation.
Such a circumstance only occurred because Lawrence was not treated as a traditional employee and therefore the college was not obligated to fairly compensate him for the same. The relevant provision of law in this instance, the National Labor Relations Act (Hereafter referred to as the NLRA) does not accord these student athletes with the status of employees. This issue has since then come into the forefront as a result of various judicial decisions which have changed the legal landscape surrounding this issue of recognition. This article would analyze the judicial decisions and attempt to answer whether these student athletes can be considered employees under the NLRA. The article would proceed to do so in primarily three parts: The first part would detail the existing legal landscape surrounding the recognition of employee status. The second part would critically analyze the judicial decisions surrounding this theoretical context and finally the third part would come to a conclusion on whether these athletes could be considered ‘employees’ under the NLRA.
The Standard for Defining an ‘Employee’
The statutory standard for defining an employee under the National Labor Relations Act (NLRA) is a crucial aspect of the legal landscape. The NLRA defines an "employee" as "any employee, and shall not be ... limited to the employees of a particular employer, . . . but shall not include any individual . . . having the status of an independent contractor, or any individual employed as a supervisor". This definition, while providing a general framework, lacks specificity, particularly in the context of university students receiving academic scholarships to perform teaching, research, or athletic services. The ambiguity of the statutory language has led to the necessity of relying on common law principles to define "employee." The National Labor Relations Board (NLRB) has historically used a two-part test to determine whether private university students, including college athletes, are "employees" under the NLRA. This test comprises a common law test and a university student statutory standard.
The legal standard for the common law test is based on the right of control and the economic realities of the employer-employee relationship. The National Labor Relations Board (NLRB) has adopted a "right of control" test, which is based on the common law doctrine of respondeat superior. This test differentiates an employee, who is subject to the control of the employer as to the purpose, methods, and means of one’s work, from an independent contractor, who performs a task by their own methods, not subject to the control of the alleged employer. The right of control test is the primary standard for differentiating employees from non-employees, and Congress and the NLRB have endorsed the reasoning as the proper measure of statutory coverage. The right to control test has been used by the NLRB to determine whether college athletes are employees. In 2014, the regional director ruled that Northwestern University football players were employees under the NLRA. However, the NLRB later reversed this ruling, declining jurisdiction due to the university's assertion that the players were students rather than employees.
In 2015, the NLRB reaffirmed its earlier stance, finding no evidence supporting the claim that Northwestern University football players were employees. Nevertheless, the board did not address the broader question of whether college athletes are employees under the NLRA. In addition to the right of control test, the NLRB has sporadically considered the "economic realities" of the potential employer and employee relationship. This additional consideration has resulted in a "blended approach" where both the NLRB and courts measure the degree of control an employer has over an alleged employee with the alleged employee’s economic dependence on the employer. This common law approach usually serves as the standard for who constitutes an “employee.”
In addition to the common law test, the NLRB has developed an additional statutory test that university students must meet to be considered "employees" under the NLRA. This statutory standard comes into play when university students receive academic scholarships to perform teaching, research, or athletic services. The application of this statutory standard to university students, including college athletes, adds another layer of complexity to determining their employment status under the NLRA. This makes the position of the NLRB unclear as to whether they consider student athletes “employees”. In this light, the subsequent section would deal with the relevant judicial decisions in this regard.
Critical Analysis of the Employee Status through Judicial Decisions
The Northwestern University case in 2014 was the first case where the NLRB addressed the issue of whether college athletes are "employees" under the NLRA. The College Athletes Players Association (CAPA) sought recognition from the NLRB that Northwestern University football players were employees under Section 2(3) of the NLRA because they received scholarship grants. Initially, Regional Director Peter Sung Ohr ruled that players receiving scholarships from the university were "employees" and allowed them to conduct an election to unionize and bargain collectively. However, the NLRB later reversed this decision, stating that the players were not employees under the NLRA. Subsequently, the Columbia University case in 2016 addressed the employment status of graduate student workers.
Unlike the Northwestern University case, the NLRB ruled that graduate student workers were employees under the NLRA. This decision established a precedent that graduate students working in exchange for tuition waivers and stipends were employees under the NLRA. However, what makes the NLRB’s stance on this issue abundantly clear is the numerous General Counsel Memos issued by them. To provide further clarity on the employment status of college athletes, the NLRB's General Counsel issued several memos. In 2017, the General Counsel published Memorandum GC 17-01, affirming the NLRB's previous rulings that college athletes were not employees under the NLRA. In 2021, the General Counsel reinforced this position in Memorandum GC 21-08. Both memos emphasized that college athletes were not covered by the NLRA, even though they might receive scholarships or stipends.
These General Counsel memos highlight the NLRB's consistent viewpoint that college athletes are not employees under the NLRA. Despite this clear stance, the debate around college athletes' employment status continues, especially considering the evolving landscape of collegiate sports and the potential impact of collective bargaining rights for college athletes. Therefore, the present regime necessitates a case by case analysis of whether each student athlete satisfies the “right of control test” which has been elaborated upon in the previous section. Therefore, there needs to be a complete overhaul in the legal recognition of such athletes to fairly compensate them for their contributions to institutions like the NCAA.
*The Author is a legal Scholar from India
(The Image used here is for representative purposes only)
References:
Finances of Intercollegiate Athletics Database, NCAA, https://www.ncaa.org/sports/2019/11/12/ finances-of-intercollegiate-athletics-database.aspx (last visited May 2, 2023)
Nancy Armour, Opinion: Everybody Except Trevor Lawrence Making Money Off His Clemson Career, USA TODAY (Jan. 9, 2019, 11:27 AM), https://www.usatoday.com/story/sports/columnist/nancy-armour/20 19/01/08/everybody-except-trevor-lawrence-making-money-off-his-clemson-career/2515081002/.