Should Student-Athletes with Scholarships be Considered School Employees?

Along with the inevitable changes that occur in society come the equally inevitable changes in law. New technology creates new crimes, and new trends create new problems. Fortunately, the law is malleable and capable of change as these gray areas arise. In the past, children played sports for recreation; a much needed break from their studies. Now, a young adult can support $40,000 a year worth of studies through playing sports. As the stakes grow higher, the subject deserves more and more attention, and will likely need to be examined by the courts. There are many reasons why the line is becoming blurred between sports, academics, and business. Like the private high school that recruits, college sports are becoming more and more like a professional sports team.

With college debt becoming a bigger and bigger problem, teaching your child to succeed at sports could be seen as a lucrative investment. In the preceding decades, college was seen as an investment itself. Now, one needs an investment just to graduate without a great deal of debt, and many people are forced to rely far too heavily on loans. The "full-ride" scholarships awarded to so many athletes are worth more than many yearly salaries, and this adds a certain degree of resentment to the budding legal problems.

Does a scholarship constitute employment to a college? Most athletes would probably say no, as they are not paid a salary. Others would say yes, as it is clearly a payment for services rendered. If so, are the colleges responsible for the actions of their so called employees? As the Duke case showed us, regardless of the law, the college does get hit with some degree of responsibility in the public eye. Perhaps a better term than employee is that of representative. The student athletes are given free tuition to represent the school, both in the time they attend and in their prospective futures as members of professional sports teams. When an announcer refers to Paul Pierce as a Kansas alumni, the college is glorified, and benefits from their association with him. In one sense, this is like an investment taken on young talent.

The investment is a chancy one, because as the sports law blog writes "presently, in most cases, [players deemed overrated and subsequently dropped] are protected from the non-renewal of their scholarship" (Karcher, 2006). This implies that education is the primary goal, which is good for students still focused on obtaining a degree. The only way to lose a scholarship is by engaging in impropriety, and this at least is what we would expect of an educational institution. It does not, however, make clear whether student athletes are employees or simply students. In contracts in the business world, there is such a thing as stipulations, which could require that someone be terminated for a legitimate reason.

The argument that student athletes are not employees, despite the "millions of dollars generated from [their] efforts," is founded on the fact that they are still, in fact, students who do not make "equitable compensation" for what they are worth. They may have all their education paid for, but this is more to the benefit of the school. Having an athlete attend the institution is requisite to the athlete playing on the team, and since "NCAA regulations also prohibit a scholarship athlete from working during the academic school year," giving a student a scholarship to attend is necessary, because without a job they certainly could not afford to attend any institution. One journal states that even with the tuition, many athletes can still not afford to attend their respective schools. "In a study sponsored by the NCAA in 1988, 61% of black and 40% of non-black football and basketball players reported they had less than $25 per month for personal expenses" (Schott, 1996). When the situation is stated this bleakly, student athletes seem less like they are employed and more like they are imprisoned. It is as if they are given almost all they need, but prohibited from rising above what they are given. The "full-ride" in this case is both a gift and a curse, and certainly not indicative of any allowable employment situation in America. In fact, it is so difficult to survive off the scholarship alone that "many commentators suggest most of the NCAA rules violations result from a need by the student-athlete for more income than they are allowed under the present system" (Schott, 1996). There are not any occupations that require illegal income for sustenance, and simultaneously bar their "employees" from working anywhere else. Such a perplexing situation is not, however, foreign to a college student in the present age of an academia dominated by bureaucracy.

From a legal perspective, too, there are many reasons why student athletes should not be considered employees of their respective colleges. They are not taxed, and any employee who did not declare the amount of money a scholarship amounts to would certainly be convicted of tax evasion. No scholarships are taxed, and in this way the athletes are just like any other student, because on this ground they can not be considered employees.

The courts seem to agree that student athletes can not be seen as employees, as it ruled the NCAA did not violate antitrust laws through paying with scholarships, and did not have to give more compensation to the football players who brought the case. "In McCormack v. NCAA, the United States Court of Appeals, Fifth Circuit rejected the plaintiffs' claim that the NCAA's compensation restrictions constituted price fixing by the NCAA" (Schott, 1996). This means that the NCAA does not have to pay what a certain player might be worth, which could never happen in professional sports. The courts seem to agree that it is simply a scholarship, not compensation which needs to be overseen by the government.

Since colleges make an extremely large amount of money from college sports, more emphasis is put on their scholarships. In the highly public venue of a sports arena, it is easy to see the student athletes. In the library, however, there are also students who receive total scholarships because of their academic ability, or outstanding grades on the SAT's. There are students given scholarships because of financial need, and these students also are not considered "employees" of the school because they receive a scholarship. The issue is only raised because, as the Sports Lawyers Journal states, "Division I athletics are big business." The business is big, and the college sports industry takes in millions each year.

In the same journal it is written that: "the competitive athletic programs of member institutions are designed to be a vital part of an educational system." This means that the association, too, looks at sports not as a job, but as part of the student athlete's college experience. It goes on to state that "[the] basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports" (Schott, 1996). This makes it even more evident that this is not a professional sport, and should not be viewed as a profession. The NCAA's definition of amateurism elucidates why college athletes are not paid in the way professional athletes are.

A very popular definition, and, "apparently the definition adopted by the NCAA, is that an amateur is someone who participates, and always has participated, in sports for pleasure and for the physical, mental, or social benefits." With money not mentioned here at all, the picture seems to make more sense. The tuition given to the students is given to allow them to reach these ends; it is not an end in itself. "The payment of monetary compensation to amateur athletes," like those in the NCAA, is viewed by many proponents of amateur sports as "contrary to the true meaning and essence of amateurism" (Schott, 1996). It is for this reason that colleges do not consider their amateur athletes, regardless of how much stardom they receive, as employees. At the end of the day, in the eyes of those who write the checks, the college athletics star is simply on the cusp between amateur sports and professional sports.

The White vs. NCAA case brings to light just how drastically the money distribution differs between professional and amateur sports. "Division I-A football players, the form of scholarships, get 12 percent of the revenue their programs generate, according to data submitted by the plaintiffs. Basketball players get 5.9 percent. These percentages are "extremely low when compared with the professional sports markets that Division I athletes may eventually enter" (Farrey, 2006). It went on to note that NBA and NFL players receive between 55 and 65 percent of league revenues. This is almost quadruple what the college athletes made, but thus far the courts have allowed this practice because of the amateur status assumed by college athletes.

An argument can certainly be made for why student athletes should be viewed as employees, and it is a very cogent one at that. "Full-ride" scholarships are not given to athletes without conditions, and these conditions are, effectively, a contract. The scholarship is contingent on performance, and participation in the given sport. If the student does not participate, or does not perform to the standard that can be reasonably expected of him, he loses his scholarship. There is work requisite to be given the scholarship, just as one needs to put work in to be paid. In Rensing v. Indiana State University Board of Trustees, the court ruled that amateurism is the "basic principle governing collegiate athletics," and on those grounds the students should not be considered employees. Courts have also ruled, however, that an athletic scholarship "imposes contractual rights and duties on both parties" (Schott, 1996). Inasmuch as this is true, it seems ridiculous that the athletes can not be considered employees. There is nothing remotely amateurish about the coaches' salaries, or of other individuals for which the team is their occupation.

In life, and especially in law, just because something is true or accepted at the moment, does not mean that it will always be, or should always be, that way. As early as 1996, the Sports Lawyers Journal was accusing the NCAA of needing to change, or fall victim to its own rigidity. The journal writes: "Eventually, the NCAA will be forced to restructure its current system of compensating its student-athletes, or it may fall by the wayside to a more progressive and innovative system" (Schott, 1996). The more progressive and innovative system is to consider college athletes employees. The obvious caveat here is that this could completely trivialize the educational aspect, and this is where the colleges should have to bear the brunt of the responsibility.

Making students employees would turn college into even more of a business, and I believe that it would severely hurt the academic side of things. As of now, a degree is very important, and students use sports to get to the degree. Despite this, problems due to the omnipresent avarice and exploitation are present even now in the NCAA. "The current NCAA eligibility rules create an environment for boosters, alumni, agents and others to break these rules in an effort to gain an unfair advantage over other institutions." Allowing these practices by foregoing education as the most important thing would make it even worse. The industry would be taken over by corporate hustlers, and the academic environment could suffer for everyone at the college. Universities with such a business oriented angle would also lose some of their prestige in the public eye, which is very important in the college world.

"The fact that a student athlete receives a valuable education, sometimes in excess of $100,000, cannot be ignored. However, being a focal point of the universities entertainment enterprise requires that the NCAA modify these rules to reflect the current status of college athletics" (Schott, 1996). This statement is from 1996, and college tuition has since risen in some schools to above $160,000 per year. This highlights a major reason why student athletes should now be considered employees of a college: because tuition is now worth exponentially more than it was in decades past. Giving a free ride to an athlete when college was $8,000 a year is totally different than giving one worth twenty times as much. As the money changes, so should the terminology used to explain giving more than some yearly salaries in exchange for athletic performance. Regardless of what the NCAA claims as the "amateurism of the 'student athlete,'" it is clear that this is money that can only be made in a profession.

Assuming that student athletes are employees, the question then arises of whether or not their respective schools should be responsible for their actions. Employers are sometimes responsible for the actions of their employees on the job, but in this situation the line is further blurred. When BC's basketball team frequents bars after their games, obviously not all of them are 21. Since I remember reading it in the newspaper, the BC officials had to have known about it. In this situation I definitely think that the school should be responsible for its students, but not that they should be hold accountable per se. It is the responsibility of an employer to be responsible for the safety of those in and the integrity of the organization; when that is threatened, they need to do all they can to preserve it.

As far as colleges being punished for the actions of their student athletes, they should not be. Even though, (as the Duke case exhibited), colleges with students involved in scandal cannot escape the wrath of public opinion, they should not be punished by the law. The alleged actions in the Duke case resulted in a coach losing his job, and the players likely being barred from any job they might have applied for in the future. The college suffered a negative reputation, but was appropriately not punished for its "employees'" actions. If anything, the college should have been more responsible in the sense of being impartial. A man's livelihood was stolen from him, and, since the allegations were false, Duke should be responsible for acting hastily.

Attorney General Roy Cooper stated publicly on CNN, regarding the overzealousness of the prosecutor in the Duke case, that "we believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations." Tragic rush or not, the media rallied behind the accusers because it was a college sports team. If the colleges can not stop athletics from being a spectacle, they must then, at the very least, make sure it does not interfere in people's lives.

When the question of responsibility is raised, we must defer to what an institution can rationally be held responsible for. It can not be expected to govern the decisions of people with free will, and it can not logically be punished on a moral ground for the transgressions of those involved in said institution. Whether or not a student athlete is an employee, he should not be held more responsible than any other student at the college. He needs to assume the burden of being a representative of the college and deal with the consequences of disgracing them, but he should not have to deal with additional consequences because of his status. This being said, any school giving a free tuition has the right to take it away, if the crime was bad enough. By the same token, I do not believe that the institution should be held responsible for the sins of one of its members. For example, if an athlete is caught betting on a game, the school should not be fined by the league. Rather, the school should be made to deal with the player appropriately.

An area where the school should be held totally responsible is that of business ethics. Athletes reported illegally taking anywhere from $8,000 to $80,000 from their schools as compensation for playing on their team, (Schott, 1996), and this type of duplicity from an institution of higher learning is reprehensible. When some people are sacrificing everything to send their kids to college, the college should not then turn around and illegally pay that money to another student because he can shoot a basketball. Even if the student athletes were considered employees, the practice while still not very egalitarian, would at least be more satisfying from a legal standpoint.

Discourse about college athletics has been going on for decades. It involves players who are young, talented, and have the whole world in front of them. The college environment adds to the appeal, and the tendency to romanticize things is ever present. This is the reason college sports take in so much money. Coaches live their dreams through their players, girls scream in the stands, the players enjoy an unparalleled social life, and the industry makes millions. With all these objectives pulling in different directions, it is no wonder there are conflicts. When the question of employment is added in, the legal implications have the potential to affect many different people in many different ways.

On one hand, student athletes are, by definition, students. They are not employees, regardless of the large un-taxable amounts of money they are being given to perform in their respective sport. They must keep up academic standards, and be responsible enough to show up at practices. To ensure this, they are barred from having any job, because it will distract them from what they need to do at college. The reasoning behind this rule is that student athletes should not work, and the people who made such a rule certainly would not consider a scholarship as a paycheck. When one has a job, one can spend money in any way they wish. Scholarships are not as versatile as money in this respect, and thus it can be argued that they are not a result of employment, but rather the means by which to gain future employment.

On the other hand, they are receiving payment for a service, and this is one condition that satisfies the definition of employment. The semantics are subtle enough, but the end result is clear. College athletes play at the school that offers them the most perquisites, just as lawyers work at the firm that offers them the most. While there are certainly exceptions to that example, they are exceptions reserved for business, not amateur sports.

The liability issue is even more obscured, because it is by definition open-ended. Like the gray areas in law created by the large amounts of scholarship money, gray areas in liability are being brought to the attention of the courts. If a student athlete is considered an employee of a school, the school does have some degree of responsibility for his actions. Since he is still a student, however, the school should have the same responsibility for his actions if he did not play sports. The only difference would be in terms of declaring money to the IRS on tax forms, or other similar instances that would be exclusive to a student who is also an employee. Above all, colleges will need to exercise ethical responsibility, because of the impressionable young people that are being hired for inordinate sums of money on the school's behalf.

The issue of employing college athletes to play sports is a complex one with many layers. There are a lot of potentially landmark cases facing the courts now, (such as class action suits against the NCAA,) and there will likely be many more in the future. As long as the world becomes more complex, the issues in sports law will follow suit. Sports in college have always been a big deal, but with the amount of money being made in the industry at present, the hardships caused by high college tuitions, and a caste system that seems in its nascent stages, these issues are poised to become even more prevalent in law.