Monday, April 28, 2014

While We're Waiting for the Election Returns....

Steve Willborn has just posted on SSRN an article on football, Northwestern, and the "employee" conundrum. The abstract is pretty short:

This article discusses whether college athletes should be considered employees under a broad range of employment statutes. The central thesis is that, if college athletes are persistent, it is inevitable that some of them, somewhere, sometime, will be found to be employees. A major reason for this is that the basic rules for determining who is an employee lean in their favor across a broad range of employment statutes, including private- and public-sector collective bargaining laws and laws protecting individual employment rights. College athletes are also likely to be classified as employees at some point because there are literally hundreds of different employment statutes. College athletes will have many independent opportunities to present their claims. Finally, claims by the NCAA and its member institutions to a special exemption for coverage under all these statutes are weak. The analogy to antitrust law, where the NCAA has been treated favorably, is inapt. Moreover, the courts will be reluctant to create non-statutory exceptions to important state and federal labor protections where the legislature has failed to do so.

Steve and I have been sharing some thoughts about this piece (mostly on his side, my contributions being largely limited to a "football is different" theme), some of which are captured here:

I decided to do this article mostly to educate myself about the issues raised by the Kain Colter/Northwestern situation. I would say the main thrust of my article is that the specifics of that situation have soaked up too much of the oxygen on the college-athlete-as-employee issue. The Northwestern case is important but more limited than commonly understood. And there are many, many other opportunities for college athletes to forward the claim that they are employees.

 I would say that the article makes four basic claims. First, the Northwestern case is much more limited than commonly understood. For example, by its terms, the Regional Director’s decision in the case means that the college athletes at more than 60% of all NCAA institutions are NOT employees. The Regional Director said athletes who didn’t have scholarships at Northwestern were not employees, so no Ivy League athletes and no athletes at NCAA Division III schools are employees under the ruling. (As far as I know, no one has commented on this important aspect of the decision.) Of course, people aren’t exercised about those schools. But the ruling also doesn’t apply to 90% of the institutions we tend to worry about – 90% of the institutions in the top 5 athletic conferences are public universities and not governed by the NLRA.

 Second, some of the public-sector bargaining laws are incredibly favorable to claims by college athletes that they are employees. Florida provides constitutional protection for such claims; California is also quite favorable. Of course, in some states those claims would be non-starters. But college athletes at public universities in many major athletic markets would have a good chance of unionizing under public-sector bargaining laws.

 Third, college athletes are even more likely to be successful in getting themselves classified as employees under laws protecting individual employee rights: there are literally thousands of statutes the claim could be made under (discrimination laws, unemployment, workers compensation, wage laws, etc.); college athletes could pick out favorable individual plaintiffs (such as one-and-done basketball players where the connection to academics is weakest); and the decision-makers in the cases are less subject to political influence (e.g., compared to the NLRB or its public-sector equivalents).

 Fourth, the common claim that college athletes should be an exception to the normal rules determining employee status is weak. That claim is often backed up with reference to cases under the antitrust laws that do treat college athletics as different. But those cases are applying the normal antitrust laws in finding that sometimes college athletics requires collaboration that normally would be prohibited; the cases do not carve out an exception to the antitrust laws, they are applying them. In this case, universities are seeking an exception to the normal rules determining employee status. Procedurally, the courts should not be the ones making such exceptions; if there are to be exceptions, the legislatures should make them, not courts. Substantively, even if the claim has some force, it doesn’t justify a blanket exception. Maybe some exceptions from the wage-payment laws would make sense; exempting college athletes from the protection of the discrimination statutes seems unwise.

 So my main conclusion is that college athletes will be classified as employees sometime, somewhere, for some purposes. They have so many arrows in their quiver that this seems inevitable. I don’t say much about what the NCAA should do in response to this, nor do I talk about whether it’s a good idea to classify athletes as employees. This is mostly a technocratic piece.  But it’s interesting that right now the kinds of changes the NCAA is making (paying for parents to go on recruiting trips and to games, providing more food) cut in the direction of making college athletes more employee-like. So I view most of the current moves by the NCAA as providing more arrows, or better arrows, or something like that. 

I won't ask why Steve didn't include this summary in his abstract, but I will attest that he educates all of us as well as himself in the process.  It's well worth a read.


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