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Law professors argue Div.1 athletics is full-time job

Kenneth J. Cooper | 7/12/2011, 11:05 p.m.

Willie Hicks Jr. expresses ambivalence about whether he was an employee at Boston College, where he was the first black quarterback on its football team.

“There are similarities to it being a job, as I look back. There is a time allotment that is expected of you,” says Hicks, a 1991 graduate who grew up in Mattapan and co-owns Hicks Auto Body in Dorchester. But he feels “blessed” to have been able to attend BC without paying for his tuition, dormitory room and books.

Remy says “athletes attend college as a privilege and are provided the unique opportunity to earn a degree and at the same time compete in intercollegiate athletics.  That opportunity is incongruent with the notion of being an employee.”

Both Amaker and Hicks went to private schools, a minority in Division I athletics. A significant limitation to the McCormicks’ case is that federal labor law applies only to private employers  —  and not to the state universities that dominate college sports. The Michigan State professors say the 32 states with laws similar to the National Labor Relations Act usually write them to conform to basic definitions in federal law.

Hunter points out, though, that most southern states don’t have similar labor laws. That would leave out such powerhouses as the University of Georgia, University of North Carolina and University of Texas  —  even if the argument that the McCormicks first made five years ago in the Washington Law Review were to prevail in federal courts or before the NLRB.

In that article, the McCormicks analyze whether Division I football and basketball players are really employees under common law and the NLRB’s 2004 decision that graduate assistants at Brown University were students, not employees.

The common law has three tests: the right of others to control a person’s activities, and whether that person is compensated and is also economically dependent on that compensation. The law professors find that college athletes meet all three because a coach has much control over what they do, an athletic scholarship amounts to compensation and players depend on those funds for food and shelter as well as schooling.

“The right of control is the biggest one,” Robert McCormick says. “They (coaches) have such control over the lives of the young men and at the end of the season or sometimes even during the season, they can say, ‘You’re fired.’ ”

The NCAA limits athletic scholarships to one year, renewable for a total of four years of playing. A scholarship can be withdrawn for not following the coach’s rules or any other reason.

In their analysis of the Brown University decision, the McCormicks conclude the status of athletes differs from graduate assistants’. The professors say athletes are not primarily engaged in learning, play sports unrelated to their course of study and fall under the supervision of coaches rather than faculty members. The McCormicks dispute the NLRB’s finding on the fourth test, which has to do with compensation.

“In our judgment young men playing major football and basketball are not there primarily for an education. They’re primarily there to win football games and basketball games and perform well,” Robert McCormick says.