Friday, March 28, 2014

Northwestern Football Players are really employees. Is the football team really charitable?

Try as I might, I can't satisfactorily articulate the logical nexus between the decision that D-one college football players are not really students just playing football after classes but instead full blown employees who go to class after work and the argument that D-one football teams are not just student groups furthering the educational misssion of a tax exempt organization but instead very big business.  The only thing one has to do with the other is that there are legal fictions on both sides of the comparisons.  As in "student athletes are to employment as D-one college football teams are to professional football leagues?"  Another problem is that the NFL, too, is tax exempt.  A bill was recently introduced in the House and the Senate to strip the NFL, MLB, and NHL of their exempt status.  The bill has a snowball's chance so I won't even go back and find the link.  But somehow when I read the opinion -- the campus lives of our Saturday afternoon heros makes interesting reading -- I got the feeling that that exposing the myth of the student athelete somehow also exposes the myth of amatuer [nonprofit and tax exempt] competition.  I think the parties were cognizant of this issue. The  football players' brief takes issue with the whole concept of amateurism and the notion that the concept requires that the players not be treated as employees.  In fact, the brief explicitly accuses the University of just trying to protect its profits.  Northwestern's brief takes the contrary view, arguing that D-one football is all about education and amateur athletics and therefore the students should not be treated as employees, lest the charitable goals be sacrificed.  Northwestern stresses that college football is an "avocation" not a "vocation."  I have only skimmed the briefs, actually, but neither side explicitly or directly addressed the fundamental problem -- the whole idea that we are purportedly dealing with charitable organizations pursuing something other than profit.  Even the description of the lives of college football players calls to mind something other than amateur athletics:  

The first week in August, the scholarship and walk-on players begin their football season with a month-long training camp, which is considered the most demanding part of the season. In training camp (and the remainder of the calendar year), the coaching staff prepares and provides the players with daily itineraries that detail which football-related activities they are required to attend and participate in. The itineraries likewise delineate when the players are to eat their meals and receive any necessary medical treatment. For example, the daily itinerary for the first day of training camp in 2012 shows that the athletic training room was open from 6:30 a.m. to 8:00 a.m. so the players could receive medical treatment and rehabilitate any lingering injuries. Because of the physical nature of football, many players were in the training room during these hours. At the same time, the players had breakfast made available to them at the N Club. From 8:00 a.m. to 8:30 a.m., any players who missed a summer workout (discussed below) or who were otherwise deemed unfit by the coaches were required to complete a fitness test. The players were then separated by position and required to attend position meetings from 8:30 am to 11:00 a.m. so that they could begin to install their plays and work on basic football fundamentals. The players were also required to watch film of their prior practices at this time.  Following these meetings, the players had a walk-thru from 11:00 a.m. to 12:00 p.m. at which time they scripted and ran football plays. The players then had a one-hour lunch during which time they could go to the athletic training room, if they needed medical treatment. From 1:00 p.m. to 4:00 p.m., the players had additional meetings that they were required to attend. Afterwards, at 4:00 p.m., they practiced until team dinner, which was held from 6:30 p.m. to 8:00 p.m. at the N Club. The team then had additional position and team meetings for a couple of more hours. At 10:30 p.m., the players were expected to be in bed (“lights out”) since they had a full day of football activities and meetings throughout each day of training camp. After about a week of training camp on campus, the Employer’s football team made their annual trek to Kenosha, Wisconsin for the remainder of their training camp where the players continued to devote 50 to 60 hours per week on football related activities.

 

For a more direct discussion of the NCAA's status as a nonprofit, tax exempt organization fostering  amatuer athletics, see this post providing a link to John Colombo's article on the topic. 

 

dkj

http://lawprofessors.typepad.com/nonprofit/2014/03/northwestern-football-players-are-really-employees-is-the-football-team-really-charitable.html

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