Time to Readdress the Notion of Workers’ Compensation for NCAA athletes

The following article is a guest contribution by Benjamin Haynes, Esq.   Haynes is a former Division 1 Basketball Player at Oral Roberts University and currently practices law in the State of Florida.

According to various courts’ decisions, a “Student-Athlete” is not viewed as an employee of the University.  Why is this important? Well, this is important for many reasons, but the one I want to focus on here is for purposes of workers’ compensation. In order for a Student-Athlete to be eligible for workers’ compensation, he must be deemed an employee and not an independent contractor. What determines whether or not one is an employee or an independent contractor? The most helpful test is found under section (220) of the Restatement (Second) of Agency:

A)     The extent of control which, by the agreement, the master may exercise over the details of the work;

B)      Whether or not the one employed is engaged in a distinct occupation or business;

C)      The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

D)     The skill required in the particular occupation;

E)      Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

F)      The length of time for which the person is employed;

G)     The method of payment, whether by the time or by the job;

H)     Whether or not the work is part of the regular business of the employer

I)       Whether or not the parties believe they are creating the relation of master and servant; and

J)       Whether the principal is or is not in business.

While courts vary on how much weight will be given to each of the factors above, the general approach is to give primary importance to the first factor of the test, which is the amount of control that exists in the relationship. See e.g., Jones v. Atteberry, 77 Ill.App3d 463, 33 Ill.Dec. 28, 396 N.E.2d 104 (Ill.App.1979).

The amount of control that a University has over one of its Student-Athletes is very high. The list of how a University controls the daily lives of Student-Athletes is extremely lengthy. For example, the University controls:

  • Where the Student-Athlete lives;
  • Which classes the Student-Athlete will take, and when the Student-Athlete will be able to take them according to Coach’s practice schedule;
  • When a Student-Athlete will train, practice, and lift weights;
  • Mandatory tutoring sessions;
  • Some even control curfews for when Student-Athletes must be in their dorms. And the list goes on.

In a recent article written by Josh Eidelson titled, Madness of March: NCAA gets paid, players don’t, former UCLA punter Jeff Locke stated, “I don’t see how you can really describe it as anything but a job being an athlete,” says Locke. “You work the equivalent hours … you get paid in the form of a scholarship.” In the same article, Nick Fram and Thomas Frampton are quoted stating, “We see a level of control that exceeds that in almost any other workplace,” says Frampton. “Whether it’s the long hours that athletes are expected to work, or broader issues like what happens off the field in their personal time, what they put in their body, what they don’t put in their body.”

As a former Student-Athlete, and now an employee of a law firm, I can without hesitation state that the amount of control that a University has over a Student-Athlete is far superior to that of my job as an attorney, or any other job I have maintained. As Frampton stated above, every aspect of your life is controlled by the University when you are a Student-Athlete.  On an average day, during the school year, an athlete will generally be required to attend activities from about 8AM until 9PM. This includes attending classes, training, and then tutoring.

It seems that labeling a Student-Athlete as an employee of the University would be a straightforward decision, especially if courts follow the general practice of deeming control as the most important factor. Yet, most courts have established decisions determining that a Student-Athlete is not an employee.

To date, the most notable case in this field is Waldrep v. Texas Employers Ins Ass’n, 21 S.W.3d 692 (Tex. Ct. App. 2000). In this case, Waldrep, a football player for TCU, obtained a severe spinal cord injury which left him paralyzed from the neck down. In 1991, Waldrep filed a workers’ compensation claim for his injury. The Commission entered an award in his favor. TEIA appealed this decision to the district court. In a trial de novo, a jury found that Waldrep was not an employee of TCU at the time of his injury. The district court rendered judgment in favor of TEIA. Waldrep then appealed the district court’s decision. In his appeal, the appellate court held that “The evidence is clear that TCU did not have the right to direct or control all of Waldrep’s activities during his tenure at the school.” Id. Therefore, the appellate court held up the district court’s decision in favor of TEIA, and determined that Waldrep was not an employee.

So according to the appellate court of Texas, if an employer does not have the right to direct or control every aspect of an employee’s activities, then that employee is an independent contractor and not entitled to workers’ compensation. If the court has this type of precedent for any and all workers’ compensation cases, then that worker would never be deemed an employee.

While the Texas court reasoning might leave one scratching his head, I believe that the decision was made because of more powerful underlying issue. That is the notion of amateurism. In the Waldrep opinion, the court did the usual rant about the difference between amateur and professional sports, and how a student-athlete was not receiving wages to play. Id.

It seems as if the amateurism defense has been the court’s reasoning for helping the NCAA to avoid any legal liability in the past. Interesting enough, former executive director of the NCAA, Walter Byers, who initially came up with the “Student-Athlete” term, wrote in his book, Unsportsmanlike Conduct: Exploiting College Athletes, that “We (the NCAA) crafted the term student-athlete, and soon it was embedded in all NCAA rules and interpretations.” It seems that Andew Zimbalist agrees with my theory. Zimbalist, a sports economist, has written that this definition and use of “Student Athlete” was used to help the NCAA in its “fight against workmen’s compensation insurance claims for injured football players.”

Therefore, the notion of “Student-Athlete” is a term that is in great need of being redefined. Student-Athlete cannot be deemed such a unique term that is prevents the NCAA from being susceptible to the law. This ideal needs to be addressed and attacked or another NCAA student-athlete will eventually, and unfortunately, be severely injured and will have no recourse for compensation. As to the employee issue, the court system should look at this issue in an objective manner, and should even call in witness testimony of former and current Student-Athletes to attest to the amount of control that a University has over an athlete. This should all be done in order to avoid any further injustice, such as the injustice served to Kent Waldrep.

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