Civil Rights Expert Says Generating Billions in Revenue for NCAA and Universities Should Trigger Employee Status
By John M. Stahl, Esq.
An article that civil-rights historian Taylor Branch wrote for the October 2011 edition of The Atlantic magazine addresses whether the astronomically lucrative services that student athletes provide creates a relationship that triggers workers’ compensation liability for sports injuries. Our analysis of this piece will examine the role of basic workers’ compensation principles, such as requiring that the relevant activity furthered the business objectives of the entity with the proposed workers’ compensation liability, which apply to this controversy.
We will additionally share some thoughts that Branch and former National Collegiate Athletic Association (NCAA) official Joe Crowley expressed recently in interviews for the PBS program NewsHour.
Lastly we will summarize Professor Larson’s discussion of student-athletes as set forth in his authoritative treatise on workers’ compensation law.
Statistics that Branch’s article cited to demonstrate that the efforts of student athletes generate significant revenue include the Southeastern Conference collecting more than $1 billion in athletic receipts in 2010. He reported that much of this revenue and the lesser but still phenomenally high amounts that other schools reap from athletic programs comes from broadcast rights contracts.
This creates a high-stakes environment in which numerous colleges and universities compensate “amateur” star athletes, who cannot collect wages for their services, with cars, apartments, and other items that typical college students value. This practice is comparable to a corporation wooing an up-and-coming Jack Welch by offering him or her use of a company Park Avenue penthouse.
Branch stated explicitly that “two of the noble principles on which the NCAA justifies its existence- ‘amateurism’ and the ‘student-athlete’- are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes.” Branch next advocates increasing the number of student athletes who are compensated for providing services that help fill their schools’ coffers.
Workers’ Compensation Considerations
Branch wrote further that one reason that the NCAA created what can be considered the fictitious concept of the student-athlete was to help that organization avoid workers’ compensation liability for harm that football players experience during games. Branch reported that one argument against imposing that liability has been that colleges and universities are not in the “football business” in apparent disregard of the huge outlays and revenues directly related to many high-profile university sports programs.
Branch pointed out as well that one reason for the controversy regarding the employment relationship between a university and a student-athlete is that these jocks are hybrid creatures who theoretically attend college to both absorb the knowledge that their professors offer and to participate in often highly competitive athletic activity. He then referred to the history of this debate being resolved in favor of not granting these athletes the status that obtaining workers’ compensation benefits require.
Branch speculated as well that ongoing litigation and proposed reforms are raising the possibility that student-athletes will receive paychecks for playing on their teams; if this occurs, it seems nearly impossible that universities and/or the NCAA can avoid workers’ compensation liability for harm that occurs during a game.
Although Branch’s article did not address this consideration, willful ignorance similar to the argument that is often asserted when an illegal alien is hurt on the job plays a role. The question is whether it is equitable for a university or the NCAA to avoid workers’ compensation liability if it has a good reason to believe that a booster or another individual or business with a stake in a student-athlete’s performance is rewarding that person under the table for being a team player.
Branch on NewsHour
In discussing his article on the PBS program NewsHour, Branch described the college sports industry as the only place in America in which “we forbid adults from seeking a portion of the highly valued services that they provide.” Branch added that the revenue that student-athletes generate for their schools and the NCAA is billions of dollars more than the value of the scholarships that the universities award these competitors.
Branch additionally clarified that he is not advocating that paying student-athletes be mandatory; he just supports removing the NCAA’s prohibition against this practice.
Crowley on NewsHour
Joseph Crowley, who is an NCAA historian and a former president of the University of Nevada at Reno, appeared on NewsHour the day after Branch's interview, providing his perspective on the propriety of paying student-athletes. Crowley acknowledged that today's world is a far different world than the one that existed when the NCAA was founded, but advocated continuing the principle of student-athletes being unpaid amateurs for as long as possible.
Crowley stated as well that paying student-athletes a portion of the revenue that they help generate would transform them from athletes to workers; he opined that doing so would be contrary to the long tradition of college sports.
Crowley argued additionally that paying star student-athletes would also require paying players who have not displayed as much talent on the field. He noted that this would affect scholarship funds, could strain budgets, and might also violate equality rules that protect the rights of female students at institutions of higher learning.
Crowley added that "If we are going to have students playing sports, we're simply not able to pay them." He further pointed out that the NCAA's "multi-million dollar catastrophic injury policy" covers "really, really severe injuries."
A comprehensive review of Branch's arguments would require an extended analysis that is comparable to the post-game wrap-ups that often push broadcasts of football games significantly past the allotted time. Avoiding this necessitates postponing discussing workers' compensation topics, such as the applicability of the "coming-and-going rule" if student athletes obtain workers' compensation coverage, and slippery slope issues, such as liability regarding high school football players.
The main point is that workers' compensation is designed to provide reasonable and necessary benefits regarding harm that someone sustains within the course and scope of his or her employment under a fairly broad definition of that term. It is also generally accepted that workers' compensation law is construed liberally in favor of the person providing a business a service.
Larson's Workers' Compensation Law provides guidance regarding the requirements for creating an employment relationship; Ch. 64, § 64.01 of that authority states that an "express or implied" "contract of hire" is an essential element of that relationship. Larson's states next that that contract determines the nature of that relationship.
In the case of student-athletes, the contract for hire that Branch advocates is based largely on quantum meruit. This concept refers to fairly compensating someone for the value of the benefit that that person provides.
In its simplest form, the argument for creating a relationship between student-athletes and their university that triggers workers' compensation liability is that the sports in which the jocks participate generate a great deal of income to which they are equitably entitled to a portion.
Larson's Workers' Compensation Law Ch. 22 § 22.04[c] addresses whether student-athletes should qualify for workers' compensation benefits for harm sustained on the playing field by analyzing court opinions that have addressed that issue. Determining factors in some of those cases have been whether the student-athlete who was injured during a game concurrently held more traditional employment, such as working at the university library, and whether that employment and other tangible benefits that the university had provided that individual were conditioned on participating in the sport. Those circumstances make a compelling case for awarding the requested workers' compensation benefits.
Branch concluded properly that the concept of the student-athlete is outdated in an era in which collegiate athletics is not an amateur endeavor and in which not classifying these cash cows as employees definitely treats them improperly and encourages the corruption that has tainted what started as an effort to provide a well-rounded college experience.
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