NCAA Amateur Status and Unionization

April 25, 2014

Northwestern NCAA playerThe term “amateur” derives from the French, “lover of” – one who engages in an activity for benefits other than financial gain. Attacks on what some consider the NCAA’s sham amateurism status are gaining momentum. There “is nothing ‘amateur,’” they argue, about the billions of dollars generated by college sports teams.  And, today Northwestern University football players vote on whether to unionize as employees under the College Athletes Players Association though their right to do so is still subject to appeal. Here’s a brief summary of some of these disputes and tips for tracking them.

Northwestern Football

On March 25, the Nation Labor Relations Board (NLRB) ruled that Northwestern University football players were “employees” under the Labor Act (not, “primarily students”).  As a result, they can vote to unionize.   It’s the kind of decision that could permanently change college athletics. This decision sets a precedent for other private universities whose players might decide to unionize.  Public universities are not directly affected by this decision as they do not fall under the NLRB’s purview and are subject to state employment laws. For example, there are 24 “right-to-work” states that either prohibit or limit the ability for public workers to unionize.

Northwestern University has already filed their appeal to the full National Labor Relations Board in Washington, D.C.  If the panel upholds the decision, the University could then appeal to the United States Court of Appeals.

NLRB decision: On Westlaw at 2014 WL 1246914

Right to Work: For a list of right to work states, see 0060 SURVEYS 15

Brown v. University: Northwestern University relied on the NLRB’s previous decision in Brown v. where graduate student assistants were denied employee status.  The NLRB distinguished from Brown because: (1) Grant-in-aid scholarship football players are not “primarily students”. They spend 50-60 hours a week participating in football versus 20 hours a week attending class; (2) Their status as players is not part of their academic degree requirements; (3) The University’s academic faculty do not oversee the players’ athletic duties. In other words, there is no concern that employee disagreements will affect the classroom; and (4) the players’ compensation is not merely “financial aid.” Brown can be found at 342 NLRB No. 42 (N.L.R.B.).

Antitrust Actions

A couple of antitrust actions question the amateur status of college athletes. The complaint in Alston v. NCAA  argues that Defendants, NCAA and the “Power Conferences” (the Pac 12, the Big 10, the Big 12, Southeastern and Atlantic Coast conferences) have violated Section 1 of the Sherman Act by colluding to prevent players from making what they would make in a competitive market.  The Plaintiff, Shawne Alston, specifically challenges NCAA Bylaw 15.1, “Maximum Limit on Financial Aid- Individual,” which limits compensation to a player to a “full Grant-in-aid” (i.e., tuition and fees, room and board, required course-related books). This compensation is purposefully kept below the total cost of attendance.

Alston argues that players are essentially working full time jobs while not getting enough compensation to meet typical student expenses. Conversely, the average college football coach earns $2 million dollars. Top football schools earn tens of millions of dollars every year. The notion that the NCAA uses its rule to promote “amateurism” is “a fraud.” Competitive balance will not be impacted as competitive balance doesn’t exist.  50% of all Final Four teams from 1950-2006 were from 13 schools; half of the top 8 finishes in the AP final college football were from 12 schools.

See docket:  4:14-CV-01011 (complaint alleges that “there exists a broad consensus among economists and professors of sports management that “amateurism” as the NCAA defines it, is really just a façade to cover up what amounts to the monopolization of the industry via a cartel, and collective price-fixing.) Set up a Westlaw Docket Track: Westlaw Docket Track bell alert

On March 17 labor lawyer, Jeffrey Kessler, filed an antitrust claim on behalf of current and former athletes in New Jersey federal district court against the NCAA.  He too, named the five largest conferences as defendants.  Kessler seeks to represent all FBS scholarship football players and Division I scholarship basketball players in enjoining the NCAA’s practice of capping player compensation in a free market.

Complaint: See the complaint for Jenkins v. NCAA at 2014 WL 1008526 (complaint alleges plaintiffs are “exploited by Defendants and their member institutions under false claims of amateurism” but… “[t]here is nothing ‘amateur’ about the billions of dollars generated by FBS football and D-I men’s basketball.)

Docket: 3:14-CV-01678  Set up a Westlaw Docket Track:Westlaw Docket Track bell alert

O’Bannon’s Likeness

In September of last year, former UCLA basketball stand-out Ed O’Bannon settled a lawsuit with Electronic Arts (“EA”) and the Collegiate Licensing Company (“CLC”) for a purported $40 million.  O’Bannon’s claims were for violation of rights of publicity.  The settlement left the NCAA in the suit.  On April 11th, US District Court Judge Claudia Wilken denied parties cross-motions for summary judgment because of conflicting evidence regarding “the alleged procompetitive benefits of the NCAA’s definition of amateurism.”  If not settled, trial begins June 9, 2014.

Order: On Westlaw at 2014 WL 1410451.

Docket: 4:09-CV-01967  Set up Track:Westlaw Docket Track bell alert