Is a College Player an employee? It may depend on how you define a “primarily economic” relationship

February 20, 2014

NCAA basketballOn February 12 the National Labor Revue Board (NLRB) heard the first in a series of arguments regarding the application to grant the College Athletes Players Association (CAPA), a group comprised of members of Northwestern University football team, status as a labor union. The main question the NLRB will decide is whether college athletes are considered “employees” under the law. That determination will rest on how the NLRB defines the relationship between the university and its players.

The argument against deeming college athletes “employees” is based on the NLRB decision in Brown University, 342 NLRB No. 42 where the NLRB refused to grant employee status to graduate student assistants. In Brown, the NLRB found graduate assistants were not employees because their relationship with the university was “primarily educational, not economic.” The NLRB further stated that the purpose of the Labor-Management Relations Act (29 USCA 141) was to “cover economic relationships”; therefore graduate students have no right to form a labor union.

A graduate assistant’s “educational” worker status was based on the Leland Stanford principle which decided that these workers were “primarily students” because: (1) their position was based on their enrollment as students; (2) their position was necessary to obtain their degree; (3) they received academic credit for their work; and (4) their stipend was not dependent on the “nature or intrinsic value” of the services they performed. Leland Standford, 214 NLRB 621 (1974).

Unlike teaching assistants who are students, “first and foremost,” CAPA has a strong argument that the primary purpose for an athlete’s college attendance is an economic one, particularly if you consider the “high-revenue” sports like football, basketball, and hockey where the main purpose for an athlete’s enrollment is to play their sport, get noticed and eventually advance to the professional ranks. Acquiring a degree is secondary.

A plain language search for economic relationship defined in the NLRB content page will yield several decisions citing to Brown including Brevard Achievement Center, 342 NLRB No. 101 which states, “if [the relationship between individuals and their employer] is guided primarily by business considerations. . . the individuals will be found to be statutory employees.”

The sole purpose for many universities to accept these students and grant them scholarships is to lure the most talented players to play for their teams, build a winning program and increase revenue for the school. Graduating is not a condition to their status as a player. Granted, a student’s status as an athlete is contingent on their enrollment. Even so, the rest of the Leland standard fails to honestly classify student athletes as “primarily students.”

The major problem facing CAPA is they must to convince the NLRB that either 1) all college athletes at Northwestern have a primarily economic relationship with the university; or 2) they should somehow divide the students into those with a economic relationship and those without. But how do you determine which students fall where? For example, a marquee player like Johnny Manziel (aka “Johnny Football”) could easily fall into the “primarily economic” category, but there are plenty of other student athletes whose primary reason for attending school is to obtain a degree. For these students the sport is secondary. How can CAPA argue that those students still have a “primarily economic” relationship with their university or that the starting player on the football team with a scholarship and legitimate professional prospects should be treated differently from the rest of the student athletic body? This is the main hurdle CAPA must overcome to achieve recognition, because although there may arguably be a strong, perhaps even predominantly economic relationship between a university and some of its players, the line at which that relationship occurs differs from sport to sport and player to player.