THE BLOG
03/31/2014 01:53 pm ET | Updated May 31, 2014

Why College Athletes Aren't Really Employees -- But Should Be

Sometimes, there is a difference between how things should be, and how things are. Some college athletes should be employees, but they are not. A lot of the confusion has been generated on the issue of whether Northwestern University football players are employees and therefore able to form a union under federal law. I suspect that some of this confusion has come from people conflating what should be the case for student athletes with what is the case for them. Many people seem to think it's unfair that some student athletes spend the majority of their time playing a sport, and the result is that the school profits from this. They should be employees working for an employer. Not students. They should be athletes, playing in a minor league. That may be how it should be. But that is not how it is.

College athletes are not employees

Why not? Here's an analogy to help make the point: Restaurants charge money to customers for prepared food. That is the primary relationship between restaurants and customers: prepared food for money. Let's say a restaurant comps a patron -- gives him a free meal every week. Is that patron being compensated like an employee of the restaurant? No. So far so good. Now, let's say, sometimes the restaurant comps people because they are celebrities, and the restaurant benefits by having them there. Let's go further, and say that the restaurant benefits a lot by having celebrities eat there. The celebrities get free prepared meals, and the restaurant gets publicity, quadrupling its profits. Are the celebrities compensated like employees of the restaurant? No.

Just like the restaurant, sometimes Northwestern comps students the high price of tuition. Let's say Northwestern does this for Mary because Mary has a 4.3 GPA in high school and a perfect SAT score. Is Mary now getting compensated like an employee of Northwestern? I would say no. Let's say that Northwestern also does this for Martin, because Martin is the best football player in all of high school football. Now, the difference between Mary and Martin is that Northwestern makes a lot of money when Martin plays football as a Wildcat. Northwestern does not make as much money when Mary receives coveted NSF grants and wins math prizes. Both Mary and Martin have to adhere to strict guidelines about what each must do in order to retain his/her scholarship. Just like the difference between the restaurant comping patrons versus celebrities, the only difference between Mary and Martin is that Northwestern profits a lot from comping Martin the football star, and significantly less from Mary the Math Wizard.

How much the university benefits or does not benefit has nothing to do with the question of whether the primary relationship is one of employment. That argument has always been a loser. If it were a winning argument, every non-profitable business could successfully argue that its workers are not eligible to form a union. Even so, some still feel like the current NCAA system doesn't seem fair since it appears to allow schools to take advantage of student athletes.

It's just not fair...

This gets us back from the world of "is" to the world of "should." Student athletes who receive free degrees in exchange for playing a sport are not employees. Should they be? Yes. What should change? Universities should be required to use two "tracks" for admissions. There should be a "student" track, which is the traditional primary exchange of an education for money. "Students" may still try out for athletic teams, but they are students first and foremost. The second track is "Athlete." Athletes are paid employees of the universities. They would play in what is now like a defacto minor league in sports like basketball and football. The minor league would become more of a real thing than what it is now. As part of their compensation, they could be permitted to earn a degree at the university sometime after their employment contract expires, up to a reasonable amount of time, say 20 years.

What will happen next?

As I've said elsewhere, it is often more attractive or convenient to shoe-horn normative results we want into the legal cases that arise -- in this case, by pretending what the students should be is what they are. But this comes with great costs. If this road is followed, it will be followed by changes in NCAA rules and restructuring of schools' athletic programs across the country. It is doubtful that these changes would ultimately equate to the "victory" for student athletes some are heralding the Regional Director's decision to be. What is more likely is restructuring that benefits the power-holders in the current system -- the NCAA and the academic institutions with the most to lose by upsetting the status quo.