College Athletes Should Drop Unionization and Declare Themselves Interns

When football players at Northwestern University submitted a petition to the National Labor Relations Board to form a union last month, they were above all asking to be recognized as employees. The request is an open challenge to the National Collegiate Athletic Association, which since 1953 has designated college players as “student athletes,” a term coined precisely to avoid the responsibilities and liabilities that come with employee status.

The NCAA is actually part of a long American tradition of businesses and institutions seeking to exclude certain categories of workers from the protection of the law. And the Northwestern players, who are calling themselves the College Athletes Players Association (CAPA), are part of growing roster of contractors, medical residents, graduate assistants, and, most recently, unpaid interns who have joined a protracted legal tussle over the definition of employee.

Last May a federal judge refused to certify as a class a group of 3,000 former unpaid interns at Hearst publications, including Harper’s Bazaar, who had sued for wages. In June a different federal judge ruled in favor of a group of production interns on the movie Black Swan who sued Fox Searchlight Pictures on similar grounds. Appeals of the two cases are now being heard in tandem.

These intern groups have brought their complaints under the Fair Labor Standards Act, and they are asking the courts to deem them employees and compel their bosses to pay them retroactively. The athlete group is pursuing a different tack, seeking status as a union to negotiate for better treatment down the road. For now, the Northwestern football players say they are not after pay, just full coverage for sports-related medical expenses. The very fact that they are not already paid, however, could torpedo the effort.

“If the day were to come that athletes get compensated, then I think there’s a much stronger case [for union status],” Mark Conrad, head of the sports business program at Fordham University’s Gabelli School of Business, told Bloomberg News when the Northwestern players made their announcement. The NCAA has managed to maintain the amateur status of college athletes for 60 years through a powerful legal syllogism: Being an employee means getting paid, and college athletes are not paid. Therefore college athletes are not employees.

Maurice Pianko, a New York lawyer who runs the website Intern Justice and has brought wage complaints on behalf of interns in studio production and animation, says college athletes have a better shot at cracking the system by following the intern approach. “It’s great that they did that,” Pianko says of the Northwestern players, “[but] I think that [it] is easier to bring it under the Fair Labor Standards Act, make it a clear-cut, straight-up minimum wage case, and let a judge decide.” A wage victory, he says, would make the union drive easier.

Pianko would like to bring such a case himself but doesn’t have a plaintiff. Players, he says, are afraid to rock the boat and lose their chance at an NFL or NBA payday. “I don’t blame them,” he says. “If I were in their situation, I probably wouldn’t want to come forward.” He is also waiting for the appeals court to rule on the intern appeals and, hopefully, reaffirm the Black Swan ruling, which he believes would bolster a college athletics-oriented case.

The standards that courts use to define an employee are various and depend on the going alternative. A six-factor test (PDF) is used to distinguish employees from interns. It revolves, in large part, around who benefits. The test for distinguishing between employees and independent contractors revolves around who controls the work. College athletes have a strong argument for employee status on both grounds. Their work, for which they receive renewable one-year scholarships, generates billions annually, and they do it according to the exacting demands of their coaches.

Probably the best articulation of the athletes-as-employees case comes from Robert and Amy McCormick, a husband-and-wife team of legal scholars at Michigan State University. Their 2006 paper, “The Myth of the Student-Athlete: The College Athlete as Employee” (PDF), calls the “student athlete” label “mere window dressing for individuals who, in substance, are employees.” The entire paper is worth a read for anyone interested in the Northwestern players’ cause. It reviews the case history under the National Labor Relations Act, a 1935 law that established the board that will consider the CAPA petition, and presents an account, based on a handful of anonymous interviews, of the working lives of Division I football and men’s basketball players.

These athletes sound, in important ways, like unpaid interns. They toil long hours with little immediate return for demanding bosses and nurse long-shot dreams of making it big. During the week of a home game, the McCormicks write, football players spend 53 hours on team duties. Year-round, they put in more than the 250 workdays of the average American employee. They cannot take classes in the afternoon and have “virtually every aspect” of their campus lives controlled by coaches. “Their daily burdens and obligations,” the McCormicks write, “not only meet the legal standard of employee, but far exceed the burdens and obligations of most university employees.”

Athletes and glossy magazine interns suffer a common sympathy problem. They are in glamour industries and surrounded by people who, at least notionally, would love to take their places. If you don’t like fetching coffee for the editor or running wind sprints, you are always free to quit. The pay, by this logic, is just getting to be there.

But this, as Pianko points out, is not how the law works. “We don’t allow people to just decide they don’t want to be paid minimum wage,” he says. And for elite college athletes, unlike most interns, minimum wage is just the beginning, since they have talents and specialized skills proven to be worth millions. The value of their work is what makes their case strong, and it’s also what makes the resistance fierce.

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