It’s that time of year, again, when we have all been whipped into a frenzy over Cinderella tales, upsets, and historic feats. Of course, for those of us with ties to Duke, Michigan State, Wisconsin, Kentucky, South Carolina, Notre Dame, Connecticut and Maryland, the next few days have proved even more fanatical. It is difficult to watch these very talented young athletes, who have obviously spent hours upon hours training over years of honing their skills, without thinking “should these kids be considered employees for all of the extra time they commit to their respective programs?” Or “should these student-athletes be financially compensated for the significant revenue they bring to their respective schools and athletic conferences?”
As with many issues, this one has been hotly debated along a sharp divide. Many of us are familiar with the Northwestern case that went before the National Labor Relations Board, wherein the then recently formed College Athletes Players Association sought recognition as the union representative of scholarship recipients playing on Northwestern University’s football team. Of course, the issue in the case was whether football players receiving scholarships should be considered employees for the purpose of organizing under the National Labor Relations Act. Ultimately the regional director, Peter Sung Ohr, ruled in favor of the student-athletes, applying the analysis set forth in the Supreme Court’s decision in NLRB v. Town & Country Electric, 516 US 85 (1995). Key factors in Mr. Ohr’s analysis were the significant amount of hours the players spent weekly on football-related activities (50 – 60 hrs/wk) and the considerable amount of revenue the football program raised for the school ($235M over a 10-year period). The regional director’s decision is now under review by the NLRB.
It is reasonable to expect, like their football student-athlete counterparts, basketball student-athletes, both men and women, spend a similar amount of time on “basketball-related activities” and generate considerable income for their respective schools. If the Northwestern case is upheld through the review and subsequent appeals, there will be far-ranging implications for these institutions of higher learning. If I demote a player to the practice squad, for example, can he or she file a charge of discrimination under Title VII? And will players have to be compensated with overtime pay for extra film study? And the list goes on and on. Whatever the outcome, it will certainly be fun to watch – though never as much fun as the performances put on by these “student” athletes!