The NCAA as Joint Employer? Let's Be Real (original) (raw)
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Unionization and College Athletics: An Emerging Legal, Ethical, and Practical Quandary
Management and Administrative Sciences Review, 2015
The issue of paying college athlete has very "loudly and clearly" been brought to the public's attention by the recent decision of a regional director of the National Labor Relations Board which ruled that a group of Northwestern University football players were more than "just" student athletes, but actually "employees" of the university pursuant to U.S. labor law. The students then would have the right to form and join a union and to bargain collectively for wages and benefits as well as other aspects of employment. This article discusses the legal, ethical, and practical ramifications of paying college athletes. The article presents the legal environment for the NLRB decision as well as the rationales therefor and the expected appeal process. The article makes ethical conclusions as to the morality of paying college athletes as well as their potential unionization pursuant to three ethical theories -Ethical Egoism, Utilitarianism, and Kantian ethics. Finally, the authors offer some recommendations for university administrators and other key stakeholders.
Journal of Antitrust Enforcement, 2022
Long enthralled by the consumer-welfare standard, previously sclerotic antitrust enforcement in the USA has recently signaled an overdue awakening to the realization that anticompetitive conduct can harm workers as well as consumers. Working in concert with the two regulatory agencies tasked with safeguarding competition, the Department of Justice (DOJ) and Federal Trade Commission (FTC), the US Treasury issued a March 2022 report titled The State of Labor Market Competition, which discussed at length the market conditions that enable and sustain the exercise of monopsony power. The report succinctly summarized the antitrust harm to workers from both direct and indirect wage effects, explaining that, ‘[c]oncentration in particular industries and locations can lead to workers receiving less pay, fewer benefits, and worse conditions than what they would under conditions of greater competition.
The NCAA Cartel and Antitrust Policy
Review of Industrial Organization
The National Collegiate Athletic Association (NCAA) was originally founded to protect student athletes from the brutality of college football. The NCAA has established a number of prominent athletic programs and achieved huge commercial success. In spite of this success, the NCAA has limited the compensation of student-athletes through collusive monopsonistic restraints. Ordinarily, these restraints would be vulnerable to antitrust attack, but the NCAA has enjoyed benign neglect by the U.S. Department of Justice and the Federal Trade Commission. The root of this is the Board of Regents [National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984)] decision, which requires rule-of-reason treatment of the NCAA's restraints. The essential role of amateurism of student athletes is used to justify the NCAA's cartel behavior. In this paper, we demonstrate that amateurism is a myth. We suggest that the NCAA will be unable to provide an evidentiary foundation for its claim that amateurism is crucial to the success of college athletic programs. In addition, we reject the possibility of an efficiency defense for the NCAA's cartel behavior.
Big-Time College Athletes' Status as Employees
ABA Journal of Labor & Employment Law, 2018
This article addresses the legal status of FBS football and Division I men’s basketball players as employees. Part I analyzes the application of the National Labor Relations Act to these athletes, viewed through the lens of professional athletes. Part II addresses National Labor Relations Board precedent regarding college students’ employment status from the 1970s through the 2016 Columbia University decision that student assistants are statutory employees. Although the status of graduate student assistants as employees may be on fragile ground under a Republican-majority NLRB, this historical framework is relevant for understanding why grant-in-aid athletes should be viewed as statutory employees. Part II also analyzes the decisions of the NLRB and its Regional Director in Northwestern University. Part III discusses application of state workers’ compensation statutes and the Fair Labor Standards Act to college athletes and explains how their employment status under the NLRA relates to rights under these statutes.
The NCAA is the largest and most well-known of four independent organizations that regulate intercollegiate athletics and part of its self governance structure is its membershipapproved enforcement and infractions process used for assessing penalties for violation of the association's bylaws. This process has often been criticized in the media, by the NCAA members themselves, and in the federal and state court system. One of the primary criticisms of the NCAA and its administrative law process has been that it does not provide any due process and procedural protection for those accused of NCAA rules violations. This article explores the history of the NCAA and the enforcement and infractions process, the many legal and legislative challenges to the process, and a template for reform to make the system impartial for all stakeholders involved. KEYWORDS National Collegiate Athletic Association-due process-membership-legislation 'The National Collegiate Athletic Association (NCAA) is a voluntary organization through which the nation's colleges and universities govern their athletics programs. It comprises more than 1,250 institutions, conferences, organizations and individuals committed to the best interests, education and athletics participation of athletes' (NCAA, 2007b, para. 1). As a voluntary membership organization, the NCAA proposes, passes, and enforces its own rules and regulations governing topics ranging from academics to recruiting. In 2006 the NCAA conducted 88 championships, in three divisions, for 23 sports and over 375,000 college athletes (NCAA, 2007c, para 1). 1 Although the NCAA is often seen as an organization that primarily conducts and markets intercollegiate athletic competition, it also acts as an investigative and enforcement agency. Some observers perceive the enactment and enforcement of NCAA regulations as solely originating from the NCAA offices (Chabot, 2004; Crowley, 2007). However, the NCAA Website notes, ' The entire organization [is] comprised of members and staff. [I]t is actually a bottom-up organization in which the members rule the Association' (NCAA, 2007d, para. 4). Although the NCAA office initiates, stimulates, and alters intercollegiate athletics by proposing, passing, and enforcing rules designed to protect the integrity of the sports experience, the member schools (primarily through their presidents' votes) ultimately determine NCAA policy (Due Process and the NCAA, 2004a). These membership-developed rules are published in each division's bylaws and the NCAA Manual. The extensive nature of these rules is evidenced by the size of the NCAA's
Radical Reform of Intercollegiate Athletics: Antitrust and Public Policy Implications
Tulane Law Review, 2012
major iterollegiate athletic programs ar heading for if not already in, a cnsis. Corruption continues to affect major football and basketball progrnis, exacerbated by a failure of imagination and wil in ideniymg and deternig corruption, and by a lack of consensus on what constitutes "corruption" when football and men t basketball stats generate millions ofdollars but cannot enjoy a lifestyle commensurate with many peer students. Curaent levels of spending am nonsustainable at many schools. Even where intercollegiate athletic programs am sustained pninanly by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question why these revenues should subsidize nonrvenue spots at the expense of fimancially pressed classrom activities. Contrary to the NCAA Constitution, major football programs do not operate '"in keeping with prudent management and fiscal pratices." This Essay sets forth an agenda for refor, explains why the agenda refilects sound public policy and analyzes why and how the NCAA can implement the agenda in a manner consistent with the Sherman Antitrust Act. It builds upon four foundational pmnciples: (1) prudently managed self-sustaiig intervollegnate sports am legitimate; (2) ntercollegiate sports programs that are not self-sustaining have no greater claim on the surplus proceeds from the activities of other sports prognns on campus than any other educational progmm offered by the univeisity; (3) the equal opportunity purposes that underlie Title IX should be maintained-and (4) whatever the additional societal benefits that may result from Division Inorevenue sports, they do notjustify the cost of operating those sports, having regard for the societal benefits that can be achieved by operating these sports at the equivalent of an elite club or Division XT level Applying these foundational pnnciples in light of the problems facing intercollegiate athletics, this Essay offers a five-part Charter of Reform for intercollegiate athletics (I) end subsidies for men § sports at the Division I level; (2) opeate sufficient women t Division I sports to provide female students with sports opportunities equal to male students; (ilZ) offer other sports on an equal basis to male and female students, 1imitedto financial aid only for financial need or academic merit independent of athletic ability with significant restrictions on coachig and travel; (I) allow all scholarshps to be partial or lull and reduce football scholarship totals to fify-five; and (V)permit up to one and one-half scholarships for the most elite athletes.
Reforming College Sports and a Constrained, Conditional Antitrust Exemption
Managerial and Decision Economics, 2016
This paper argues that intercollegiate athletics is at a turning point. The status quo is not stable and change is coming. This change can move college sports further toward commercialization and quasi-professionalism or it can endeavor to reinforce the historical vision of college sports as an amateur activity subordinated to the educational mission of U.S. colleges. The former path will lead to increasing academic scandals, widespread financial insolvency and diminishing support for Olympic sports and Title IX. The latter path, while not without its own challenges, may succeed in restoring a proper balance between athletics and academics.
The Antitrust Bulletin, 2017
Faced with significant antitrust scrutiny, particularly from ongoing cases, the NCAA has sought to justify, under the rule of reason, the competitive restrictions its collegiate model of amateurism imposes by claiming procompetitive benefits. This article examines the NCAA's arguments and presents five findings: (1) the procompetitive justifications that the NCAA has offered for its restraint on athlete payments have little, if any, economic merit and do not justify the consumer injury resulting from the restraint; (2) absent the restraint, the minimum amount public P5 conference schools alone could have paid athletes is approximately $5.2 billion between 2003–2004 and 2014–2015, approximately two-thirds of which would have been used to compensate football and men's basketball players, indicating that the consumer injury resulting from the NCAA's restraint on trade has caused significant antitrust damages; (3) contrary to the NCAA's claims, empirical and documentary evidence demonstrates that directly compensating FBS/D1 athletes would not result in decreased consumer demand; (4) " competitive balance, " when analyzed in an antitrust setting, does not support the NCAA's claims; and (5) evidence, including the over one million documents released from the academic/athletic fraud investigation at the University of North Carolina at Chapel Hill, demonstrates significant consumer injury associated with the integration of academics and amateur revenue sport athletics. Such findings stand in direct opposition to the NCAA's claim of procompetitive benefits from integrating athletics and academics under its amateur model.