I bagged groceries when I was a kid.  I gathered carts, swept under the aisles, and cleaned commodes.  I also paid union dues.  For a kid making $4.25 an hour, the $100 initiation fee and the $20 monthly dues seemed steep.  Sometimes it felt as if I were working just to pay union dues.  I hated the union.  I didn’t see any benefit at the time, I suppose I still don’t, not for the part time, 16 year old grocery bagger.  However, is there a benefit for a college athlete?

Athletes from Northwestern University upset the apple cart on Tuesday when news broke that they wanted to unionize.  The idea has been polarizing and in large part the arguments fall along political lines.  What are you?  Pro labor, union yes man?  Or are you a supporter of the establishment?  Who is right, and who is wrong?  For my part, the interesting question is whether or not the players have a legal leg to stand on.

The first question that entered my mind upon hearing of this is the fact that in order to unionize, there must be an employer/employee relationship.  According to the National Labor Relations Board (NLRB) website, the mission of the NLRB is defined as follows:

“The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.”

The obvious question then is whether or not student athletes are considered employees?  Courts have historically held that the student athletes were not employees and have denied benefits such as workers’ compensation.  If the student athletes are not recognized as employees, there can be no union, and thus no union protection.  Case closed, Northwestern players 0 – NCAA 1.

This is where the wealth of case law comes in that NCAA student athletes are not employees.  In 1974 a TCU football player by the name of Kent Waldrop suffered a paralyzing injury during a college football game with Alabama.  As a result of this injury, Waldrep attempted to secure benefits which are available in Texas for employees who are injured on the job.  TCU protested that Waldrop was in fact not an employee, and therefore, no workers’ compensation benefits should be paid.  This case was tried to a jury in Texas and the jury found that Waldrep was in fact not an employee and therefore not eligible for work comp benefits.  Numerous appeals ensued, and in June of 2000, a Texas Court of Appeals upheld the jury’s verdict and reasoning that Waldrep was not an employee of TCU.

In an age where every court can reach its own decision, and appellate courts have to clean up the mess, the question posed by the Northwestern players is not something that is likely to resolve anytime soon.  While the argument they make appears to be a long shot at best, the question they raise at least deserves some conversation.  Why shouldn’t the universities be compelled to pay players?  Why shouldn’t all universities be forced to offer catastrophic health and disability coverage for student athletes who sustain injuries while engaged in university sporting events?  If a union is not the best avenue, shouldn’t there at least be some seat at the table for the players?

Certainly, when athletics prosper, so too does the university.  When there is a product worth mentioning, or a high profile player, the schools are quick to take advantage.  A cursory look up and down the interstates here in Louisville will show Teddy Bridgewater selling season tickets, an unknown UK player proclaiming that “A Nation Awakes”, and many other examples.  However, when the lights are turned off, and the eligibility has run out, what comes of the majority of the players?  Sure, there is the free education, and the room and board.  Many will argue that this is the compensation that the players deserve;  nothing else.  I disagree.

It will be complicated, it will be prolonged and polarizing.  Ultimately, lawyers for both sides will make a lot of money arguing the merit of each case.  Hopefully, there can be some compromise where all parties benefit and the “student athlete” gains some additional benefit.

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Keith Poynter

Keith Poynter graduated from the Louis D. Brandeis School of Law in May of 2011. While in law school, Keith studied Sports Law as well as other core curriculum. Prior to becoming an attorney, Keith worked in the insurance industry for 6 years, and was a police officer in both Kentucky and Tennessee for 6 years. As an avid sports fan, former basketball official and current youth sports coach, Keith is heavily involved in sports when not at work or with his family at the lake. Keith's diverse background makes him an excellent source for legal opinion about issues surrounding the sporting world. Whether the matter be criminal or contractual, Keith's unique experience and education allows him to offer insight that may be missed by the casual fan. Keith is available for commentary on any legal issues that may arise in the Kentuckiana area and will routinely post articles concerning local and national sports law topics.

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