At a recent symposium at DePaul Law School, legal experts in the field of sports law discussed the economics of college sports, and whether student-athletes should be compensated and form unions. The panel included Mark Edleman from Fordham University Law School, Martin Ginsburg from Marquette University Law School, and Timothy Epstein, a Loyola University Law School professor and local sports law practitioner.
According to Edleman, the NCAA generates $11 billion a year in revenues from college sports. "As a sports league, the NCAA is the third largest by revenue behind the NFL and MLB," said Edleman. "The NCAA makes more revenues than the NBA and NHL."
Much of that money goes to those on the top. "The head of the NCAA, Mark Emert, makes $1.7 million a year," says Edleman.
Head coaches at the big college football programs make on average $2.05 million a year. At $7.5 million, Alabama's Nick Saban is the highest paid college football coach. And the athletics program at Alabama leads all schools with more than $143 million a year in revenues.
In highlighting the inequity in college sports, Edleman points to the economic models of professional sports. In the NFL, MLB, NBA and NHL, players and teams split the profits. But in college sports, schools take 100 percent, while the student-athletes get "zero".
That apparently inequitable business model is at the core of the Northwestern football players attempt to unionize. Student-athletes argue that they fit the definition of employees, a standard required in order to form a union. At a hearing in the Loop last month, the National Labor Relations Board waded through the reasons for and against classifying them as employees.
Northwestern Quarterback Kain Colter is leading the union organizing drive at Northwestern. "I'm honored to be the face of this. Being a leader on my team I was able to reach them. They trust me and I hope to lead them in the right direction," says Colter. "I don't know why I became the face of this. I'm very passionate about this. I believe that God has led me in that path. I'm honored to try and change college football for the better"
In arguing that Northwestern football players are employees, Colter and the College Athletes Players Association (CAPA) point to the hours student-athletes spend every week practicing, preparing and playing the game. They receive a form of compensation through scholarships, which they risk losing if they fail to follow the rules of the team. And like any other employee-employer relationship, the coaches act as supervisors and managers, and exert control over their young players.
The school insists that the student-athletes are not employees under the law and playing on the team for the school is not a job. Because education is part of the football playing experience at Northwestern, the school does not consider them workers.
"Our position is that they're students first and foremost," says Bob Rowley, Northwestern University spokesman. "They are on scholarships. And those scholarships are there for their educational experience and that's the primary reason for them."
The school cited the 2004 case of NLRB v. Brown University, where a Republican controlled labor board found that graduate students and teaching assistants cannot form a union. The board reasoned that because the students were there to learn, and the experience was part of their education, they do not fit the definition of employee under the Act.
Ironically, the Brown University case reversed an NLRB decision just four years earlier under a Democrat leaning labor board. In NLRB v. NYU, the board found that the grad students and teaching assistants satisfy the definition of employees of the school and can unionize.
The current state of labor law may offer support for Northwestern's argument that education comes first and playing sports second, but a look at the NCAA game schedules offer a contradiction. Edelman points out that many college games are scheduled on school nights for the best ratings.
A look at the upcoming NCAA March Madness schedule shows that student-athletes will spend time away from school and on the road. Earlier this year, Florida State student-athletes missed the first day of the spring semester to compete in the BCS championship bowl game. In the course of a competition season, student-athletes end up missing several days of instructions each year to play the game.
The Northwestern football union drive also comes as a landmark case involving college athlete compensation winds its way through the federal courts. In O'Bannon v. NCAA, current and former players are suing the NCAA over the use of their likeness in computer games. In court papers, former UCLA basketball star Ed O'Bannon argues that the NCAA has profited from the licensing practice while denying student-athletes their rights to some compensation. The class action lawsuit alleges that the NCAA rules on amateurism and enforcement procedures violate the Sherman Antitrust Act and enriches the school at the student-athletes expense.
NCAA rules on amateurism dictate that an athlete loses his or her amateur status if they receive compensation, salary or any payment in exchange for their participation in college athletics. By giving student-athletes a share of the profits from the licensing of their images, under the NCAA rules, they will no longer be considered amateur athletes and can no longer play. And while athletic scholarships may look like a form of compensation for students, the NCAA does not consider that a form of payment because of its educational purpose.
As a result of the lawsuit, game maker Electronic Arts has stopped producing a popular line of NCAA football and basketball games. After filing his lawsuit four and half years ago, a federal judge in Northern California cleared the way earlier this year for the case to go to trial. Unless a settlement is reached, a jury could begin hearing the case this summer.
The push to level the playing field also reveals the challenges student-athletes face off the field. Many former student-athletes, who never make it to the pros, struggle with health issues from their college playing days. Colter says one thing he hopes to gain with unionizing is some form of health coverage for current and future student-athletes.
Besides health concerns, student-athletes are also struggling to make ends meet. While they can potentially find wealth if they make it to the pros, a recent Drexel University/National College Players Association study found that many student-athletes are living in poverty. Even though they receive a scholarship, 85 percent of student-athletes fall below the poverty level. The financial crunch comes from a shortfall in their scholarships, which often times fail to cover the other costs of higher education such as room and board.
According to Martin Ginsburg, student-athletes really don't have much of a voice under the current NCAA rules. The unionizing drive and the O'Bannon lawsuit could provide students that voice.
While there are strong reasons and arguments for equity for student-athletes, Loyola's Timothy Epstein isn't sure if now is the time. Besides trying to convince the courts and the NLRB, or changing the NCAA bylaws on amateurism, he raises Title IX as another issue to contend with.
The discussion has focused on men's basketball and football, the programs that are the most profitable. But Title IX demands that schools give women's sports, which may not be as profitable, an equal footing.
In the meantime, the NLRB is now sorting through the testimony and legal arguments from the unprecedented Northwestern football union hearing last month. The Chicago office of the labor board is expected to issue a decision in the coming weeks. Regardless of the decision, the losing party will most likely appeal the case to the full NLRB.
The appeal could lead to a major shift in labor law and extend legal rights to a new class of workers. Even if the student-athletes lose at the regional level, they could potentially succeed with the NLRB. The five member board that President Obama appointed, and the Senate confirmed last summer, has already signaled that they may be ready to reverse the Brown University case. That's the case that Northwestern has based much of its arguments against unionizing the football team.
Don Villar is a News writer at WLS-TV, a licensed attorney, and also the Vice President of Local 41 of the National Association of Broadcast Employees and Technicians.
