Bonus Topic Analysis: December 2017 Public Forum Topic | The Champion Briefs Blog
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December 4, 2017

Bonus Topic Analysis: December 2017 Public Forum Topic

By Belén Mella

This month, debaters across the country will be discussing "Resolved: NCAA student athletes ought to be recognized as employees under the Fair Labor Standards Act." Not a sports junkie myself, this resolution didn't immediately strike me as interesting as earlier resolutions about issues like international relations or civil rights. However, as I dug into the literature, I realized just how deep this topic goes. December debates will grapple with questions about big business, racial injustice, labor laws, marketing, and more. Though you probably can't derive impacts to global war, this resolution is a great opportunity to engage in truly substantive debates. Furthermore, as real courts go back and forth on decisions pertaining to this very topic, there is sure to be plenty of ground on both sides of the debate.

Background

The first term in the resolution is "NCAA," which refers to the National Collegiate Athletic Association. According to its website[1], the NCAA is a non-profit and member-led organization that consists of 1,123 colleges and universities, 98 voting athletic conferences, and 39 affiliated organizations. The NCAA comprises over 19,500 teams of nearly half a million athletes, including 54,000 who compete each year at the NCAA's 90 championships. Key members include coaches, academic support staff, athletic directors, college presidents, health and safety personnel, and more. These individuals are meant to work together towards the mission of "prioritizing academics, well-being and fairness, so college athletes can succeed on the field, in the classroom and for life." However, one glance at the headlines will tell you that many commentators are skeptical of this mission. As you'll hear time and time again in December debates, there is an argument to be made that student athletes are being exploited, their academics and long term career plans pushed to the wayside while they are pushed on the field.

The second key term in the resolution is "student athletes," though we should really interpret this in the context of "NCAA student athletes," since they're the population in question. In short, intramural participants and college lawn spikeball players don't count. This term is also important because it reminds us to consider student athletes in general, not just the football players and basketball players who are the focus of so much of the literature. This distinction is important, since many of the arguments in favor of recognizing student athletes as employees stem from warrants that only apply to men's basketball and football.

Now we should turn our attention to "ought." According to the Oxford English Dictionary, "ought" is "used to indicate duty or correctness, typically when criticizing someone's actions." In a debate context, "ought" is often thought to imply a moral question. That said, it is hard to untangle this resolution from its practical implications. Teams will be quick to point out that one "ought" not do something if it has negative harms that outweigh its benefits. In other words, the word "ought" functions pretty similarly to "should," so teams should proceed accordingly.

The last major clause in the resolution is "recognized as employees under the Fair Labor Standards Act." According to the United States Department of Labor, the Fair Labor Standards Act "establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments".[2] In the status quo, NCAA athletes are not recognized as employees. The NCAA website reads: "Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes."[3] For context, the National Labor Relations Board is an independent US government agency responsible for enforcing labor law, particularly in relation to collective bargaining and unfair labor practices.

The term "employees" is crucial in this resolution, and suggests that it is more than just a question of whether student athletes should be compensated. In fact, many argue that the scholarships student athletes receive are a form of compensation. For some, this suggests that student athletes are being treated fairly for their efforts in the status quo. For others, the fact that schools pay athletes for their work (in the form of scholarships) constitutes proof that they should be regarded as employees.

One of the key cases you'll read on this topic took place in 2014, when National Labor Relations Board regional director Peter Sung Ohr found that "Northwestern football players who receive scholarships are university employees and may unionize." According to ESPN, "he illustrated how [the football players] perform services under a contract of hire (scholarship), subject to the other party's control (coaches) and in return for payment ($61,000 per academic year at Northwestern; $76,000 for those players who attend summer school)."[4] Though this decision was later overturned, it provides many solid arguments on this debate topic. It is also useful because it directly deals with the idea of regarding student athletes as "employees." As you sift through the literature this month, be mindful that different authors are defending different positions, and only a few will specifically be grappling with the idea of "employment." Pull relevant points from as many sources as you can, but don't muddle debates with non-topical warrants.

Pro Analysis

To understand the Pro's stance on this topic, we need to establish some context as to the big business that is college sports. As Ian Crouchmarch points out in the New Yorker, the N.C.A.A. has a "ten-billion-dollar television contract for the men's basketball tournament."[5] Similarly, Michelle Piasecki writes for the American Bar that athletic departments in the Atlantic Coast Conference split "$40 million over the next six years" at the conclusion of March Madness, an extra "$400,000 annually per school, none of which will go into the players' pockets."[6] She furthers that the University of Alabama's athletic department "earned a $6 million payout" after the football team won the National Championship Trophy. Though the "players walked away with some new merchandise and lasting memories," they got "nothing in the way of financial gain." The examples go on and on, but the main idea is clear: college sports bring in billions of dollars, and student athletes aren't seeing the payoff.

The NCAA differs on this point. They would argue that participation in student athletics is a payoff in and of itself. To this point, Ohr (of the National Labor Relations Board Northwestern decision) stated that "the fact that the players undoubtedly learn great life lessons from participating on the football team and take with them important values such as character, dedication, perseverance, and teamwork, is insufficient to show that their relationship with the Employer is primarily an academic one."[7] According to a NCAA survey, when you factor in time spent "in the weight room, studying film, with trainers or doing anything else related to their sport," student athletes dedicate at least 32 hours a week to their sport, even though the NCAA limits in-season practice to 20 hours per week[8]. Furthermore, the publicity gained from successful athletic programs constitutes part of a university's recruitment strategies. This leads Marc Edelman of Forbes to conclude that Division I football and men's basketball players are "core members of their university's marketing team, as well as the labor force behind a lucrative secondary industry in hosting organized sporting events," further reasons why they should be considered employees[9].

How do Pro teams reckon with the fact that student athletes are afforded scholarships? According to a report from the National College Players Association (an advocacy group started by former football players from UCLA), even players on a "full scholarship" have out of pocket expenses of about $3,222 per year[10]. Furthermore, the "fair market value of the average Football Bowl Subdivision (formerly Division I) football or basketball player was $121,048 and $265,027 respectively," and football players at the top 10 have estimated fair market values between $345k-$514k, way above the value of a full scholarship for a given year. Different sources have argued that the "average football student-athlete had a fair market value $456,612 above and beyond the value of a scholarship."[11]

It will help Pro teams to be specific about what exactly they envision when they discuss expanding rights for student athletes. One place to start is on the rights to their own likenesses. According to Crouchmarch, the NCAA forbids players from "entering into their own endorsement deals or otherwise profiting from their temporary status as local football heroes."[12] This is problematic, because most student athletes will not go pro, meaning "the height of most student-athletes' earning potential will come during their college careers."[13]

To strengthen their Pro advocacy, teams should consider who exactly constitutes the student athlete population. According to a report from the National College Players Association (an advocacy group started by former football players from UCLA), 86 percent of college athletes live below the poverty line[14]. Sociologist Krystal Beamon conducted "in-depth ethnographic interviews of former Division I student-athletes" to "examine the extent to which they feel that universities emphasized their education as opposed to their athletic performance and prepared them for careers off the playing field."[15] She concluded that "involvement in athletics… hampered the development of [African American students] in several areas such as academic and occupational achievement." Indeed, the former student-athletes she interviewed felt like "used goods," corroborating accounts that "universities exploit athletes, especially African American male athletes in football and basketball."

Con Analysis

For the Con, teams shoulds be up to date on the current conditions of student athletes, so they are prepared to rebuff arguments that suggest that they are being exploited. According to an article in the Denver Post by Craig Thompson and Tom Burnett, commissioners for the Mountain West Conference and the Southland Conference, respectively, the NCAA has reformed significantly to improve the conditions of student athletes:

"On top of scholarships that fund tuition, room and board, they now receive stipends for living expenses based on the full ‘cost of attendance.' Many enjoy unlimited meals and can get help if they need it with everything from winter coats and eye exams to transportation to and from home in case of family emergencies. Starting this fall, athletes will have more time off from their sports to study, work internships or rest. They can practice and compete knowing their scholarships will never be taken away if they are injured or are not performing to the level they had hoped. All of those positive changes are a result of reform over the past three years."[16]

This last point about scholarships is crucial, and reflects a long history of disputes at the NCAA[17]. In 1956, the NCAA adopted four-year scholarships to "curb prohibited payments to college athletes," which put into question the claim that student athletes were "amateurs." Then, after pressure from coaches, the NCAA reversed the decision in 1967, determining that players could lose their scholarships if they quit the team. This would obviously exert significant pressure on a student athlete, and perhaps be considered the equivalent of "firing" for someone attempting to make a case on Pro. However, that power dynamic is beginning to change, and in October 2014 "the Big Ten announced that it would become the first conference to guarantee its athletic scholarships for four years."

With that in mind, how should Con teams deal with the issue of scholarships? After all, many Pro teams will be quick to point out that for many athletes, they scholarships they receive are far below their fair market value were they allowed to profit from their games and the use of their likenesses. I think there's two routes on this question, which in and of themselves constitute potential arguments for the Con. One is the fact that there are huge differences across sports. The reality of this topic is that much of the literature on Pro centers on two sports --men's football and men's basketball--, and is really only especially applicable to certain teams and athletic conferences. There are plenty of other sports (and notably, women's teams in each of these sports) that don't pull in the same revenue. As a result, many of the arguments in favor of referring to student athletes as "employees" quickly disappear. As Ivan Maisel points out for ESPN, "the workload of the college athletes in non-revenue sports is also extreme. They also sign that contract to perform services. They are subject to the control of the coaches, and in return for payment. By these criteria, they deserve to join the union, too."[18] Of course, this creates not only logistical nightmares, but also the real possibility that no team gets compensated in an entirely fair way. Maisel continues, "Do the men's and women's tennis teams demand the same benefits that the football team gets? Do the non-revenue athletes, who are superior in numbers, take over the union? Will the athletic department have to deal with a different union in each sport?" Note that Maisel is making arguments specific to unionization, not employment in general, but the warrants still apply.

The second route deals with framing scholarships as not only compensation, but also a major life opportunity. Right off the bat, Thompson and Burnett point out that "college graduates will earn up to $800,000 more over their careers than those who only have high school diplomas."[19] This represents a major boost, especially for low income or first generation families. Perhaps money earmarked for college tuition is far more valuable than cash payments, even though the latter might be larger in size. Even more crucially, Con teams should consider what might happen to an athletic department's ability to offer scholarships in non-revenue earning sports if they start treating student athletes as employees. If all students are paid according to a "market value," what happens to those whose market value is low? If affirming means stripping the opportunity to attend college from hundreds of thousands of student athletes, the question of fairness starts tipping towards the Con.

Earlier in the Pro analysis I mentioned that since most college athletes will never go Pro, their college careers represents the height of their earning potential as athletes, meaning they should be given the opportunity to capitalize in the status quo. However, there's a different way to frame this argument. Thompson and Burnett write that "98 percent of the college students who play football or basketball will go pro in something other than sports. That is why the vast majority of student-athletes we see are serious about academics and sports."[20] The NCAA's mantra is that that student-athletes should be students above all else. Many criticize this idea, suggesting that even though these student athletes are meant to prioritize their academics, rigorous practice schedules and bad advising leads them to do the opposite. While that may be true, what would happen if student athletes were regarded as outright employees? In trying to capitalize on their success in college athletics, academics would likely fall by the wayside to an even greater extent, taking a backseat to things like press appearances and extra practice. By calling them employees, you send a message to student athletes that their academics and career preparations shouldn't take precedence, which could leave them in more trouble come graduation.

Works Cited


[1] NCAA.org - The Official Site of the NCAA. http://www.ncaa.org/about/resources/media-center/ncaa-101/what-ncaa

[2] https://www.dol.gov/whd/flsa/

[3] NCAA.org - The Official Site of the NCAA. http://www.ncaa.org/about/resources/media-center/press-releases/ncaa-responds-union-proposal

[4] Maisel, Ivan. "Hurdles Remain for Players, Schools."ESPN, ESPN Internet Ventures, 26 Mar. 2014, www.espn.com/college-football/story/_/id/10680161/players-union-victory-small-battle-collegiate-landscape.

[5] Ian Crouchmarch. New Yorker, March 27, 2014. https://www.newyorker.com/news/sporting-scene/are-college-athletes-employees

[6] Michelle Piasecki. American Bar Association, Spring 2016 https://www.americanbar.org/publications/insights_on_law_andsociety/16/spring-2016/law-review--are-college-athletes-employees-.html

[7] Ian Crouchmarch. New Yorker, March 27, 2014. https://www.newyorker.com/news/sporting-scene/are-college-athletes-employees

[8] Nancy Armour,. USA TODAY, 5-16-2017. https://www.usatoday.com/story/sports/columnist/nancy-armour/2017/05/16/ncaa-should-college-athletes-be-paid/101765878/

[9] Marc Edelman. Forbes, 1-30-2014. https://www.forbes.com/sites/marcedelman/2014/01/30/21-reasons-why-student-athletes-are-employees-and-should-be-allowed-to-unionize/#34780e9d8d05

[10] Hayes , Matt. "Report Concludes 86 Percent of Student Athletes Live in Poverty."Sporting News, 15 Jan. 2013, www.sportingnews.com/ncaa-football/news/4465460-student-athletes-poverty-paid-scholarships-ncpa-texas-duke.

[11] Competitive nature of NCAA rules keeps student‐athletes from being paid. (2015). College Athletics and the Law, 12(8), 10-11.

[12] Ian Crouchmarch. New Yorker, March 27, 2014. https://www.newyorker.com/news/sporting-scene/are-college-athletes-employees

[13] Michelle Piasecki. No Publication, xx-xx-xxxx. https://www.americanbar.org/publications/insights_on_law_andsociety/16/spring-2016/law-review--are-college-athletes-employees-.html

[14] Hayes , Matt. "Report Concludes 86 Percent of Student Athletes Live in Poverty."Sporting News, 15 Jan. 2013, www.sportingnews.com/ncaa-football/news/4465460-student-athletes-poverty-paid-scholarships-ncpa-texas-duke.

[15] Beamon, Krystal K. (2008). "Used Goods": Former African American College Student-Athletes' Perception of Exploitation by Division I Universities. Journal of Negro Education, 77(4), 352-364.

[16] Craig Thompson and Tom Burnett. Denver Post, 9-8-2017. http://www.denverpost.com/2017/09/08/college-athletes-are-students-not-employees/

[17] Strauss, Ben. "Colleges' Shift on Four-Year Scholarships Reflects Players' Growing Power." The New York Times, The New York Times, 28 Oct. 2014, www.nytimes.com/2014/10/29/sports/colleges-shift-on-four-year-scholarships-reflects-players-growing-power.html.

[18] Maisel, Ivan. "Hurdles Remain for Players, Schools."ESPN, ESPN Internet Ventures, 26 Mar. 2014, www.espn.com/college-football/story/_/id/10680161/players-union-victory-small-battle-collegiate-landscape.

[19] Craig Thompson and Tom Burnett. Denver Post, 9-8-2017. http://www.denverpost.com/2017/09/08/college-athletes-are-students-not-employees/

[20] Craig Thompson and Tom Burnett. Denver Post, 9-8-2017. http://www.denverpost.com/2017/09/08/college-athletes-are-students-not-employees/



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