The NCAA and Taboo Trades

“It cannot be said that the Employer’s scholarship players are ‘primarily students’”

The National Labor Relations Board Region 13

Northwestern University (Employer), and College Athletes Players Association (CAPA) (Petitioner)

Case 13-Rc-121359

imagesRegular Lounge readers have heard me discuss before my seminar on Taboo Trades and Forbidden Markets.  Although markets in human organs, gametes, sex work, commercial surrogacy, and the like are probably more standard fare in a course of this nature, I think that college athletics and amateurism also have a place, and I normally spend some time each semester on college sports (plus, it’s Duke, what do you expect? There’s probably some requirement that we discuss basketball in class, but no one told me about it, since I always discuss basketball in class anyway)*

This year, though, the landscape feels different to me. Perhaps I’m just particularly attuned to these cases, given my research interests in the area, but I’m dedicating more class time to college athletics this year and there is certainly a lot more to cover. Most folks have probably heard by now about yesterday’s NLRB ruling in favor of the Northwestern players. For those who want to read the full ruling, I’ve uploaded a copy here.

Northwestern will appeal, of course, but regardless of the ultimate outcome, I find the ruling interesting, both because of the language and reasoning employed by Peter Sung Ohr, director of the board’s Chicago regional office, and because of what the ruling might signal about the broader legal environment. Coupled with progress in the O’Bannon case, the recent antitrust complaint filed by Jeff Kessler (of NFL free agency fame) against the NCAA and five conferences alleging a cartel that illegally caps player compensation, and controversy surrounding head injuries in football, it seems to me that the NCAA is under fire as never before.

I’ll be back in subsequent posts with more to say about these other cases, but for now I just wanted to highlight a few parts of the NLRB ruling. Ohr concluded that “all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are “employees” under Section 2(3) of the Act.” In so finding, Ohr reviewed the football staff, player rules, athletes’ time commitment to the sport, their recruitment and academic life, and the revenues and expenses generated by Northwestern’s football program, all of which makes for interesting reading. I found this excerpt particularly noteworthy (emphasis mine):

[I]t cannot be said the Employer’s scholarship players are “primarily students.” The players spend 50 to 60 hours per week on their football duties during a one-month training camp prior to the start of the academic year and an additional 40 to 50 hours per week on those duties during the three or four month football season. Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies. In fact, the players do not attend academic classes while in training camp or the first few weeks of the regular season. After the academic year begins, the players still continue to devote 40 to 50 hours per week on football-related activities while only spending about 20 hours per week attending classes. Obviously, the players are also required to spend time studying and completing their homework as they have to spend time practicing their football skills even without the direct orders of their coaches. But it cannot be said that they are “primarily students” who “spend only a limited number of hours performing their athletic duties.”

In today’s class, we cover some background reading, including excerpts from a book by my colleague, Charlie Clotfelter, Big Time Sports In American Universities.

*Note to Klein, Ramseyer, and Bainbridge: can you do something about all those baseball cases in the book, since that is not a sport that I watch?

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