Should College Athletes Be Paid to Play? Michigan State Law Professors Robert and Amy McCormick Say Division I College Athletes Qualify as 'Employees' under Federal Labor Laws

By Cooper, Kenneth J. | Diverse Issues in Higher Education, June 23, 2011 | Go to article overview

Should College Athletes Be Paid to Play? Michigan State Law Professors Robert and Amy McCormick Say Division I College Athletes Qualify as 'Employees' under Federal Labor Laws


Cooper, Kenneth J., Diverse Issues in Higher Education


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Is playing big-time college sports an extracurricular activity or a job? Two law professors at Michigan State University, Robert and Amy McCormick, think it is definitely a job for football and basketball players on athletic scholarships at Division I schools. The married couple has added a new dimension to the long debate over paying athletes by arguing they are "employees" under federal labor laws and entitled to form unions and negotiate wages, hours and working conditions.

"There are more demands put on these young men than any employee of the university," says Robert McCormick, who was an attorney for the National Labor Relations Board under President Jimmy Carter. "These young men are laboring under very strict and arduous conditions, so they really are laborers in terms of the physical demands on them while they're also trying to go to school and being required to go to school."

The way football and basketball players in Division I programs manage juggling sport and school, the McCormicks maintain, undermines the NCAA's contention they are student-athletes.

"Athletes don't have free choice of what major they take if the classes conflict with practice schedules," Amy McCormick says. "That's one fact that flies in the face of the idea that they're primarily students and secondarily athletes."

Donald Remy, the NCAA's general counsel and vice president for legal affairs, says court precedents and tax laws have upheld the status of college athletes as students.

"The NCAA, in accordance with courts that have addressed the issue, believes that student-athletes are not employees, under the law, and that they should not be treated as employees either by the law or by the schools they attend," Remy says. "Moreover, taxing authorities do not consider the benefits student athletes receive to be taxable compensation."

Other labor lawyers disagree with the McCormicks' legal interpretation, which the professors concede is not popular.

"It's a provocative argument," says Jerry M. Hunter, a former general counsel of the National Labor Relations Board who served under President George H. W. Bush. "I think that neither the National Labor Relations Act nor common law supports their position that student-athletes are employees."

Hunter, a partner at the St. Louis-based firm Bryan Cave, says the athletes "went there to get a college degree. They just happen to be playing sports."

Many at major collegiate programs never get a degree, the NCAA's own statistics show. Former players who did graduate may be less inclined to think they were "employee-athletes," as the McCormicks call them.

"I never felt like I was an employee of Duke University," says Tommy Amaker, a basketball star there who now coaches Harvard University's men's team, which does not offer athletic scholarships. "I had a chance to have my education paid for at an incredible school."

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Amaker says, that, as a Duke player and a head coach at Harvard, Seton Hall University and the University of Michigan, scheduling conflicts between class and practice were resolved without sacrificing academics. The player might postpone taking that course until summer or the team could take an NCAA-mandated day off. "There are ways to work around it," he says.

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 co-owns an auto body shop in Boston. 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. …

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