NCAA and the Foundation for Generated Revenue Sharing

JURIST Guest Columnist Aubry Dicks, University of Richmond School of Law, Class of 2014, discusses recent decisions by the National Labor Relations Board concerning student athletes' rights to unionize...

In January, the National College Players Association (NCPA) filed a petition on behalf of Kain Colter and other Northwestern University football players asking the university to recognize them as employees. The petition was the first step in a series that would allow the players to negotiate with the school on matters such as health insurance, an optional benefit to students from each institution and stipends to cover expenses not related to tuition, books and room and board.

On March 26, the Chicago office for the National Labor Relations Board (NLRB) ruled [PDF] that football players at Northwestern University were employees under the National Labor Relations Act (NLRA), giving student athletes the right to vote to unionize. This case of first impression may find itself as the foundation for generated revenue sharing among college athletes and academic institutions.

In order to form a union under the NLRA, individuals must be employees as defined in section 2(3). Although there are specific exclusions of job functions in the definition, the general description of an employee under the NLRA is defined broadly as "any employee." Students are not listed under the exclusions; therefore, the broad definition of an employee under the NLRA has led the Board to use legal precedent and common law to define an employee. In the early 2000s there was a fluctuation between two policies that altered the designation of students under the NLRA. The two cases that sculpted these policies were New York University [PDF] and Brown University [PDF]. New York University held that students were employees under the NLRA, but Brown University overturned that decision.

Using the common law definition used in Brown University, the NLRB in Northwestern defined an employee as "a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment." The NLRB found that the student athletes were employees under the common law definition of employees based on two premises: the student athletes perform services for the benefit of Northwestern University in exchange for compensation; and the student athletes are subject to Northwestern University's control in the performance of their duties as football players.

The NLRB found that the student athletes contracted to perform services for Northwestern in exchange for compensation for the following reasons: a contract, referred to by the Board as an employee contract, was signed explaining the duration and conditions of receiving monies; in consideration for the student athletes' services Northwestern generated approximately $235 million during a nine year period, received various economic benefits including a positive reputation that led to an increase in alumni contributions and increased student applicants; student athletes were initially sought after and given compensation for their athletic services and received an economic benefit for playing football; the economic benefit received from playing football included tuition, books, food, and shelter; the fact that the income was in the form of scholarships or stipends rather than a taxable paycheck was not dispositive of whether or not it was payment; and the student athletes' scholarships could be revoked or reduced by withdrawing from the team or abusing team rules, which give students an incentive to continue to perform their athletic services.

Furthermore, the NLRB found that the student athletes were under Northwestern's control for the following reasons: the coaches control the "location, duration, and manner in which players carry out their football" related activities each week, including meals, practices, meetings film sessions, and workouts; the coaches control where the team will spend its nights before games, the travel itinerary and dress attire for games, and which student athletes will play in the game; the student athletes devote 40 to 50 hours per week to their football duties that are under the control of coaches; the coaches control the players by monitoring their adherence to NCAA and team rules, as well as disciplining them for violations that occur; the coaches have control over major facets of the student athletes' private lives including living arrangements, outside employment, the vehicles they drive, off-campus traveling, internet posts, media speaking engagements, alcohol and drug usage and gambling engagements; and the coaches have control over the student athletes' academic affairs including, deterring Athletes from taking courses or choosing majors that conflict with football, forcing students to miss class to travel to games and requiring students to partake in study hall and other academic programs.

In addition to the aforementioned remarks, the NLRB noted that Brown University, which refused to categorize graduate, teacher and research assistants as employees under the NLRA, was not applicable to Northwestern because unlike the assistants, the student athletes were primarily football players rather than students. First, the NLRB believed the amount of hours the students attributed to football in comparison to academics made them football players, rather than "primarily students." The NLRB found that the student athletes spent more hours with football related activities than most "full-time employees work at their jobs." Second, unlike the assistants in Brown, the student athletes do not receive academic credit for the duties they performed for their scholarships. Although students "learned life lessons" from playing football, the interaction between the student athletes and Northwestern seemed economical rather than academic. Third, the student athletes are supervised by football coaches and not members of the "academic faculty." Finally, the NLRB noted that while the assistants in Brown received scholarships to attend school, where no teaching or research was required, the student athletes may lose their scholarships if they do not participate in the football related activities, adding to the premise that student athletes were paid for services performed.

Since the initial ruling on March 26, the NCAA has not backed away from their stance on the issue. President Mark Emmert, in his annual state of the NCAA address, stated that "the notion of using a union-employee model to address the challenges that do exist in intercollegiate athletics is something that strikes most people as a grossly inappropriate solution to the problem." Interesting enough, Northwestern University has taken a different approach than the NCAA. After the NCPA's filing, the Northwestern University Athletic Director stated that the University was "proud of [their] students." He noted that the University recognized the growing concerns of student-athletes when it came to "health impacts" and other important issues, and "that [students-athletes] should have a prominent voice in those discussions."

It is overwhelmingly complicated to measure the overall impact Northwestern may have on revenue sharing among college athletes and academic institutions. If the decision passes scrutiny after its appeals and is found to be binding, unionizing under the NLRA will still only apply to private institutions. This means that it would only affect seventeen Division I institutions. While using unionization to address the problem may be "grossly inappropriate," it is safe to say that the student athletes' actions have sparked an interest in the NCAA to address the problem of revenue sharing among college athletes sooner rather than later.

Aubry Dicks earned a B.S. in Business Administration from Bridgewater College, where he played on the varsity football team for four years. He is currently an intern for the Washington Redskins of the National Football League. He also previously interned with the Indoor Football League.

Suggested citation: Aubry Dicks, NCAA and the Foundation for Generated Revenue Sharing, JURIST - Dateline, Apr. 9, 2014, http://jurist.org/dateline/2014/04/aubry-dicks-revenue-sharing.php


This article was prepared for publication by Josh Guckert, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to him at studentcommentary@jurist.org

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