Are student athletes employees? New court ruling.

[Sifaka]

This has been discussed previously, regarding the Dartmouth Men's Basketball team and an NLRB ruling. This one is different, as it deals with a court ruling, rather than an agency. The topic is complex, so I suggest you read the attached law journal article.

“Laura O’Donnell, chair of Haynes and Boone LLP’s Wage and Hour Litigation Practice Group, said the decision still leaves many unanswered questions that district courts will have a “difficult time” interpreting.

“The opinion states there is a difference between athletes who play their sports for predominantly recreational and non-commercial reasons, but what does that mean?” she said. “What is it about a player that crosses them into work? Is it how much profit the college can tie to them? Is it how much they sacrifice for the sport? And how are the players going to show that?” “

NCAA Athlete Wage Case Invites Students to Sue More Colleges

A federal appeals court decision advancing student athletes’ minimum wage claims opens the NCAA and the nation’s colleges up to more lawsuits that could be worth millions, attorneys say.

news.bloomberglaw.com

 

[TheFarmFan]

This has been discussed previously, regarding the Dartmouth Men's Basketball team and an NLRB ruling. This one is different, as it deals with a court ruling, rather than an agency. The topic is complex, so I suggest you read the attached law journal article.

“Laura O’Donnell, chair of Haynes and Boone LLP’s Wage and Hour Litigation Practice Group, said the decision still leaves many unanswered questions that district courts will have a “difficult time” interpreting.

“The opinion states there is a difference between athletes who play their sports for predominantly recreational and non-commercial reasons, but what does that mean?” she said. “What is it about a player that crosses them into work? Is it how much profit the college can tie to them? Is it how much they sacrifice for the sport? And how are the players going to show that?” “

NCAA Athlete Wage Case Invites Students to Sue More Colleges

A federal appeals court decision advancing student athletes’ minimum wage claims opens the NCAA and the nation’s colleges up to more lawsuits that could be worth millions, attorneys say.

news.bloomberglaw.com

I previously served as outside counsel for one of the Power 5 conferences (you can probably guess which one!). I'm swamped with work this week, but I'll try to dig into this and share any thoughts later this week or this weekend. I find this issue fascinating, as well as a lingering time bomb that could blow up college athletics all over again post-NIL.

 

[Bigboote]

From the linked article:

"The ruling increases the possibility of more current and former players lodging suits to seek back pay for unpaid minimum wages and overtime. . ."

I worked in college and graduate school, and I never earned anywhere close to minimum wage. I dunno if I ever cracked a dollar an hour as a research assistant; may have been a little over a dollar an hour as a TA. Most grad students put in 60-100 hour weeks in my department -- if the universities were required to pay minimum wage and overtime for that, I don't know how many would survive.

 

[visitingcock]

It’s really gonna be a mess, especially since the pro union Big Ten Circuits are gonna’ see things differently than the Right to Work SEC circuits . ACC circuits north and south will split as will 9th circuit and 5th circuit in the Big 12.

Just let the Big and the SEC work it out.

 

[cancontent]

It’s really gonna be a mess, especially since the pro union Big Ten Circuits are gonna’ see things differently than the Right to Work SEC circuits . ACC circuits north and south will split as will 9th circuit and 5th circuit in the Big 12.

Just let the Big and the SEC work it out.

Hi, Canadian here looking for clarification. What is "Right to Work" in comparison to being pro union?

 

[Sifaka]

Hi, Canadian here looking for clarification. What is "Right to Work" in comparison to being pro union?

Some Union contracts require all employees to join the organization and pay dues. In so-called right to work states, such contractual provisions are forbidden.

 

[cancontent]

Some Union contracts require all employees to join the organization and pay dues. In so-called right to work states, such contractual provisions are forbidden.

Thank you!

 

[GamecockFam]

Anyone know why Alyssa Thomas isn't playing in the second half of the game tonight? Is she injured or did she get booted for a non-basketball play or something?

 

[cancontent]

Anyone know why Alyssa Thomas isn't playing in the second half of the game tonight? Is she injured or did she get booted for a non-basketball play or something?

Of course you had to go there first.

Commentators have said that there is no official word yet. They're speculating rest could be a reason.

 

[rvwsleep]

Just thinking out loud.
If they're employees, wouldn't that mean that they could stay in college
indefinitely ? (After all, what other college employee can only work for 4 years then have to go somewhere else to continue working)
And wouldn't that then mean they could play a varsity sport indefinitely ?

 

[visitingcock]

Some Union contracts require all employees to join the organization and pay dues. In so-called right to work states, such contractual provisions are forbidden.

And the employer can fire you for any reason ( if non-discriminatory) or for no reason ( subject to unemployment compensation)

 

[Bigboote]

Just thinking out loud.
If they're employees, wouldn't that mean that they could stay in college
indefinitely ? (After all, what other college employee can only work for 4 years then have to go somewhere else to continue working)
. . .

Colleges and universities have many, many non-permanent employees. Sabbatical fill-ins, adjunct professors, and even early tenure-track professors are term employees. I’m sure there are examples from the non-academic positions, too, I’m just not familiar with that part.

 

[Bone Dog]

Just thinking out loud.
If they're employees, wouldn't that mean that they could stay in college
indefinitely ? (After all, what other college employee can only work for 4 years then have to go somewhere else to continue working)
And wouldn't that then mean they could play a varsity sport indefinitely ?

Would anyone want to? Staying “in college” also means having to enroll in classes and write papers and exams and generally have a significant limitation on your time and interest. After a while that wears on you.

 

[CL82]

Would anyone want to? Staying “in college” also means having to enroll in classes and write papers and exams and generally have a significant limitation on your time and interest. After a while that wears on you.

Does it though? If they're employees and not students why would they have to do any of that?

 

[Bone Dog]

Does it though? If they're employees and not students why would they have to do any of that?

Would non-student athletes be eligible to play in NCAA games merely for being employed somewhere in the university? That would be an odd twist. I suppose anything could happen.

 

[BobbyJ]

Does it though? If they're employees and not students why would they have to do any of that?

Agree. Let 'em mow lawns and work in the cafeterias. 98% of them will need jobs since they're not going to play pro ball.

 

[CL82]

Agree. Let 'em mow lawns and work in the cafeterias. 98% of them will need jobs since they're not going to play pro ball.

If they're employees, they are paid for their services. When those services end, or even contemporaneously with it, they could choose to go to college. One would imagine that they would pay for that just like anyone else.

 

[CL82]

Would non-student athletes be eligible to play in NCAA games merely for being employed somewhere in the university? That would be an odd twist. I suppose anything could happen.

Because they wouldn't be students participating in an extracurricular activity. Instead they would be employees. Are the people who maintain the grounds at Connecticut required to be students? How about cafeteria workers, or the police department, or the fire department? The university of Connecticut is just their employer. Well, if the athlete role is merely one of an employee, why would there be any requirement for them to attend school? For that matter why would there be a limitation on the number of years they can be employed, or their ages?

 

[GamecockFam]

Would non-student athletes be eligible to play in NCAA games merely for being employed somewhere in the university? That would be an odd twist. I suppose anything could happen.

Interesting thought experiment, especially if they become more and more like an amateur league -- like the g-league or the minor league in baseball. I could see them instituting an age cap in place of a 4-year scholarship cap. And what if they let undrafted or dropped players reenter as college athletes? Like, for example, what if Brea Beal was allowed to come back after she was let go from the Lynx? It would basically turn the college game into an amateur league (like a u24 league).

 

[Sifaka]

The following is just fun speculation. Or is it?

Given the highly questionable, in my not so humble opinion, logic of the NLRB ruling that the Dartmouth men's basketball team members are employees, and the more recent court decision referenced in the first post, what about the musicians?
And what about the members of other student organizations?

I ran cross country, both freshman and varsity, (Sports had separate teams for first year students back in the Pleistocene epoch when I was a college student.) and also devoted many hours to practice and performance with the Dartmouth Symphony. I considered both activities to be wonderful recreation, unpaid in money but highly rewarding in terms of competition, camaraderie, artistic expression, etc.

But now an NLRB burrocrat has deemed at least one of my Alma Mater's sports team membership to be “employment”, despite the voluntary nature of the activity and the lack of salary or wages. Why shouldn't that line of thinking extend deep into the woodwind section of the DSO (Dartmouth Symphony Orchestra)?

And how about the chess club, El Círculo Español, and the canoe club, that got me doing Eskimo rolls in the frigid upper reaches of the Connecticut River in January, in a home made kayak?

Yeah. I want back pay for all of that.

What? You think I'm bonkers? Well, ok, maybe I am, but if the men's BB team, arguably one of the worst in the country—sorry guys—are employees…

 

[cohenzone]

Would anyone want to? Staying “in college” also means having to enroll in classes and write papers and exams and generally have a significant limitation on your time and interest. After a while that wears on you.

Depends on the school . ;-)

Interesting that this started with Dartmouth. The Ivies technically don’t give athletic scholarships, wink, wink, nudge, nudge. The athletes are plain old students who happen to have been heavily recruited to become English majors. The theories that have infected “major” college sports with NIL and open ended transfers were instigated by the idea that colleges profit off these athletes and also that the transfer rules locked them in as opposed to coaches who could leave immediately for greener pastures. I am not going to bother researching, but i would be surprised if any Ivy major sport makes money for their schools.

In general, I think that being classified as employees might have unwanted downsides if the typical conditions applicable to regular unionized workers are involved. Conditions that might include termination for unsatisfactory performance. How would that work for non-scholarship programs? Can you be expelled from school for unsatisfactory athletic performance? Can the institution establish stricter transfer rules than the NCAA or other governing body creates or require fixed term employment contracts like pro sports do? BTW, i generally support unions, but I have reservations about this one.

 

[Bone Dog]

I'm a little lost now.

Does the NLRB ruling require the NCAA to eliminate the requirement that athletes be students in good standing in order to play?

It's one thing to say that student-athletes are employees. That's an interesting decision all by itself. It's another thing to prohibit organizations like the NCAA from restricting eligibility for participating in their sponsored activities to students.

 

[Bigboote]

. . .

And how about the chess club, El Círculo Español, and the canoe club, that got me doing Eskimo rolls in the frigid upper reaches of the Connecticut River in January, in a home made kayak?

Yeah. I want back pay for all of that.

Just wanted to see that again, in bold!