Hey NLRB, Do You Think College Football Players Are Employees Now?

By Ken Reed
The Huffington Post
September 2, 2015

Last week it was revealed that the University of Cincinnati and Virginia Tech football programs were fining players for disciplinary reasons, including missing a team breakfast, or a tutoring session, skipping a class, drawing a personal foul penalty, etc.

The gist of the schemes was that the fines would be paid by withholding money from the athletes’ new “cost-of-attendance” (COA) scholarship stipends that the NCAA recently approved. This is clearly a type of incentive/disincentive pay system that you can find at numerous employer/employee organizations … like NFL franchises, for example.

But the NCAA doesn’t pay athletes, right?

“If you’re not paying them, why are you fining them?” asked Michael Hausfeld, the lead attorney for Ed O’Bannon in a case that might result in college athletes getting paid for use of their names, images and likenesses.

“This goes to the whole concept that the players are theirs as servants to the master. You want to punish them? Give them some rights. There has to be some sort of balance in the relationship.”

One of the big problems with the Cincinnati and Virginia Tech schemes is that college athletes don’t have any representation. As a result, there’s no appeal process for these kinds of fines.

An important reason that Northwestern football players attempted to unionize — unsuccessfully, due to a recent NLRB ruling — was to have some type of representation to protect them from policies like the Virginia Tech and Cincinnati fine systems.

These fine policies show “it’s an employee/employer relationship,” according to Ramogi Huma, a long-time college athletes’ rights activist who was part of the Northwestern unionization effort. “Whether they can do this under NCAA rules or not, it shows that mindset of how these coaches are considering treating their players like property.”

Aren’t these cost-of-attendance fines just one more piece of evidence that there is indeed an employer-employee relationship in college athletic departments across the country? Where is the National Labor Relations Board (NLRB) now that these type of employer/employee fine schemes have been brought to the surface?

Virginia Tech didn’t like the bright media spotlight on their new fine policy. Once news of the school’s fine system became public, Virginia Tech AD Whit Babcock quickly dumped it.

“I shut it all down,” said Babcock.

It’s too late Whit. Everyone knows what’s going on here. Yes, college athletes on scholarship are getting paid to play, in the form of an athletic scholarship. The problem is that while the pay of Whit and his colleagues isn’t capped, a collective known as the NCAA fixes players’ compensation. The reality is, the NCAA and its member institutions are holding athletes’ pay below fair market value.

In Webster’s that’s called collusion.

According to a study by Huma’s National College Players Association (NCPA) and the Drexel University Sport Management Department, football and men’s basketball players at top sports schools are being denied at least $6.2 billion between 2011 and 2015 under NCAA rules that prohibit them from being paid.

Ellen Staurowsky, a professor at Drexel University, has reported the fair market value of a football player at the University of Texas during the 2011-12 school year was $567,922 on an annual basis. The calculation was based on an NFL-like shared revenue system. The value of a “full-ride” athletic scholarship at Texas was $21,090 a year at the time of her study. As such, the fair market value denied (the difference between the fair market value and the value of the scholarship) was $546,832.

Today’s big-time college sportsworld is a classic case of economic and social injustice bred of a plantation mentality disguised by the term “student-athlete.”

The Virginia Tech and Cincinnati fine schemes are wrong, for a lot of reasons. But a big positive from the situation for college athletes today and in the future — and everyone who believes in economic justice and civil rights — is that the Virginia Tech/Cincinnati fine policies provide more strong evidence for Hausfeld in the O’Bannon case and for attorney Jeffrey Kessler in his pending antitrust lawsuit against the NCAA.

In the big picture, we’re in the midst of an inevitable march toward a system in which college athletes have the same economic and civil rights as the rest of Americans. There will continue to be legal challenges to the archaic NCAA model, and the preponderance of evidence remains on the side of the players.

When college athletes ultimately secure their economic and civil rights it won’t be the end of the world.

Major League Baseball owners and executives claimed their sport would be ruined if Curt Flood and his colleagues were successful in their quest to ban baseball’s reserve clause. Since the demise of the reserve clause, baseball has never been healthier.

Moreover, it was claimed that the Olympics would fall apart if Stone Age rules of amateurism were abolished and professional athletes were allowed to compete in the Games. By simply looking at attendance figures and television ratings for the Olympics, one can quickly see those claims were nonsense.

The economic model of college athletics is going to change in the coming years. But change certainly isn’t always bad. In this case, it will be good. The games will remain exciting and, most importantly, college sports will be more fair and just for the athletes creating the product.

And the rest of us will be able to enjoy watching the games without feeling dirty about a dirty system.

Ken Reed is Sports Policy Director for League of Fans.

Follow Ken Reed on Twitter.