When Is A Student-Athlete Not A Student-Athlete?


A regional office of the National Labor Relations Board has decided that NCAA athletes are employees of the universities for which they engage in athletic competition.  While the case, which was instituted by Northwestern University football players, has been appealed, the preliminary decision has ruffled more than a few feathers.  The colleges and universities may be on the hook for workers compensation and other benefits that they generally provide to their administrators, professors, physical plant workers and other employees.

But the issue that has struck fear into the NCAA is whether football players and other athletes will form unions and insist on being paid, inasmuch as the two major sports, men’s football and basketball, generate millions of dollars for the universities every year.  Some sports reporters, as well as NCAA spokespersons, have expressed concern that the decision, if upheld, will destroy the economic model of college sports.  Other observers have opined that the value of an athletic scholarship, while substantial, is dwarfed by the revenue generated by so-called student athletes.  I use the term “so-called” because the NCAA invented the term many years ago to try to paint the athletes as something other than employees.  In deciding the case, the NLRB applied the legal definition of “employee” to student-athletes and found that the Northwestern football players met the criteria.  Basically, the NLRB found that these students performed athletic endeavors on behalf of the university and that their hours and other conditions of the tasks performed were controlled by the university.  (In other words, they were not independent contractors who could perform their tasks as they see fit and at times that they could determine.)

Veteran sports journalist Jim Williams, who is known throughout the Washington, D.C. and Baltimore, Md. metro areas, has reported my analysis on this issue, which threatens the economic model of intercollegiate athletics, on the following site:  http://www.pressboxdc.com/2014/04/07/how-will-nlrb-ruling-for-northwestern-affect-college-sports

Enjoy the read and, as always, I invite comment.

A National Dialogue on Workplace Civility?

For years, Michael Scott, the inept manager of a regional paper company office, described his underlings in the TV series, The Office, as his family.  But the reality is that most workplaces are not family-oriented and some can be toxic environments as a result of harassment, discrimination and incivility.  Many workers believe the law protects them from any sort of harassment, discrimination or misconduct directed at them.  But they are mistaken.

The law, through the Civil Rights Act of 1964, the Americans With Disabilities Act and various state and federal anti-discrimination laws, confers only limited protection upon employees.  To be actionable, any workplace discrimination or misconduct must be based on race, religion, gender, disability, age or another legally protected status.  It is simply insufficient for one to assert that he or she has been harassed by a superior “who just doesn’t like me” or who “seems to hate everyone.”

The assumption in limiting one’s rights to sue an employer for tolerating or promoting bad behavior is that the law cannot regulate civility at work.  But the case of Jonathan Martin, the Miami Dolphins football player who left the team due to harassment from a teammate, may serve to spark a national conversation on whether poor conduct in the workplace is a purely private matter or one that should be regulated.

A brief example to put the issue in perspective:  If a male supervisor regularly harasses a female employee by utilizing sexually-charged insults, he has created a “hostile work environment” that the company must prevent.  If the company fails to act, it may be liable.  Yet, if the same male supervisor regularly harasses a male (or female) employee by using boorish terms (e.g., incompetent, stupid, moron) or by giving them unpleasant or unnecessary tasks, then the law often deems the conduct as uncivil, but falling short of a “hostile work environment.”

Martin has claimed that a teammate, Rich Incognito, made racial slurs, threatened Martin, and intimidated him.  The Dolphins suspended Incognito, pending investigation, but several NFL players have stated publicly that the media and the fans simply don’t understand the culture of the lockerroom.  It has been said that if you are a rookie in pro football, you have to understand that you are going to be hazed.  It’s nothing personal, it’s just a matter of tradition.

The allegation of racial slurs put the Dolphins on notice that if they didn’t take appropriate action, and if the misconduct continued, the team might be liable to Martin for fostering a hostile work environment.  But, putting aside the racial allegations, the matter raises issues as to how much incivility an employer should be permitted to tolerate, or turn a blind eye towards, in any workplace.

A national discussion on this issue might not result in ground-breaking laws to protect workers, but it might serve to slow down the erosion of employee rights that seems to be taking place in some states.

NFL Concussion Lawsuit: What the Media Didn’t Tell You

There is no question that the NFL “won” the settlement with the former players who sued the league to recover for the serious long-term effects of concussions they sustained in their careers. There were two major reasons why the players settled the case before any meaningful discovery (e.g., testimony) was taken. First, the players need the money for medical expenses and they did not have the patience or the resources to wait several years for a better offer or a verdict. Secondly, many of the lawsuits were filed by mass tort attorneys who have handled class action lawsuits against pharmaceutical companies, medical device manufacturers, asbestos products manufacturers, and the like. The normal strategy is to cherry-pick a case and take it to trial in a plaintiff-friendly venue such as Texas (they did that against Merck in the Celebrex case), get a big verdict, then structure thousands of settlements based on the big numbers put up in the trial. In the NFL concussion case, there weren’t thousands of potential plaintiffs as there are in most mass tort cases, so there was less motivation to keep pushing the matter towards a trial. And the NFL’s $9 billion in annual revenue is a drop in the bucket compared to the deep pockets of Big Pharma. So if the players and their families were willing to take the quick buck, they were not going to get any push-back from their attorneys. Of course, there were obstacles for the players to overcome, including the requirement that they prove their present condition is related to concussions and not something like dementia. There were also labor law issues, including the question of whether they were required by collective bargaining to go to arbitration (no jury). Of course, a huge part of the deal for the NFL was to avoid the negative publicity that would have put it on the defensive, as former gridiron heroes would have been testifying as to how they were pushed back into action quickly after sustaining head injuries.

Gary Weighs In On Alex Rodriguez Case On Sports Radio WHBO Tampa

Florida sports talk show host Eric Lopez spoke with Gary Chester to get a legal perspective on the Alex Rodriguez suspension just moments after Major League Baseball announced a 211-game suspension for the Yankees’ third baseman as a result of an investigation of the Miami-based Biogenesis company. Rodriguez, fellow all-Star Ryan Braun and others have been linked to the business that allegedly distributed banned performance-enhancing drugs (PEDs) to the players. The interview aired on AM 1040 WHBO in Tampa and on AM 1080 WHOO in Orlando. Listen to Gary’s insights at: Sports Talk Florida

The Zimmerman Case: What’s Next?

Short and sweet:  The media have moved on to Kate’s Baby.  It will return to the Zimmerman-Martin case when Attorney General Eric Holder decides whether to prosecute Zimmerman under the Civil Rights Act.  The media will feast on the civil suit which will be more difficult for Zimmerman to win because he will have to testify, thereby making himself vulnerable to contradictions between his testimony, which will be three years after the fact, and his statements to the police.  The story, like the O.J. case, will have legs.  If there is a settlement or a verdict for the family, then Zimmerman will be regarded, like O.J., as a criminal who benefitted from a flawed prosecution.  (I think experts on both sides agree the prosecution’s case was either flawed in its facts or its presentation, or both.)  There is one underlying fact that all can agree on:  each person should have avoided the other on this particular occasion, period.  Zimmerman should have heeded the instructions of the police and/or 911 operator and left Trayvon Martin alone, and Martin should have kept walking away from the overzealous Zimmerman.  As for the Stand Your Ground laws, the case puts a spotlight on the principle that the laws have eroded:  deadly force is not justified unless one is reasonably fearful of deadly harm.