Right of control

I’ve been reading through the McCormick and McCormick law review article I mentioned yesterday. Anyone following the efforts of the Northwestern Wildcats’ football team to unionize will be hearing more about that piece, as it laid the groundwork in detail for the players’ claim that they are engaged in what should be considered an employment under American labor law. It’s long, over eighty pages, but at the risk of oversimplifying its central claim, McCormick and McCormick argue that an evolving common law understanding of employment has been adopted over time by the National Labor Relations Board and the courts, The crux of that understanding is that the presumptive employer has control, or “right of control” of individuals who have been hired to perform a particular job.  More specifically, McCormick and McCormick write that the “most important factor” in determining whether “employees” could be deemed as such under the law  was “the degree of control the alleged employer maintained over the working life of the employee.”

The two authors spend a considerable chunk of the paper establishing just how pervasive is the control of college athletes by their coaches and, by extension, the university. Based on interviews with athletes and other published accounts of the typical day of collegiate players, they establish that the regular working day of college athletes, especially in-season, is typically long and grueling. Including all the obligations necessary to carry out in fulfillment of the demands being placed on them, the typical football player, for example, will begin his work early in the morning and not be finished until late at night. That long day entails one mandated activity after another, from weight training, to classes, to practice to study hall, to team meetings and so on. In the course of their analysis, McCormick and McCormick ask “what other university employee is subject to such control by his supervisor that he must lift weights at 5:30 am, run in the summer sun and seek permission to leave campus during summertime off hours, or risk termination.”

This particular passage resonated with two separate accounts I’ve read recently of college football life. One was from John Bacon’s Three and Out, about the ill-fated three year tenure of Rich Rodriguez as the head football coach at the University of Michigan. Bacon embedded himself in team activities to a substantial degree in order to write the book and among the things he did was to follow some of the players as they went through their entire day. His account mirrored quite precisely the time frame and scope of activities McCormick and McCormick outlined. A second was from the recently released The System, by Jeff Benedict and Armen Keteyian, a more panoramic look at the state of college football. The System focused quite a bit of attention on Mike Leach, both his stint and ultimate firing by Texas Tech and more recently as head coach of Washington State. The authors note that there is an eight-week period after bowl games during which, according to NCAA rules, there can be no mandatory football-related activities. According to Benedict and Keteyian, that rule is a joke, easily skirted by the scheduling of “voluntary” practices. “Voluntary” is scare quotes because, of course, everyone knows those practices aren’t really voluntary. As Leach tells his players, assembled for one of these physically grueling two hour workout sessions, which Leach scheduled from 10pm to midnight, “the starting lineup is also voluntary.”

Of course, one could be engaged in a pursuit of one’s own volition on a college campus that could be demanding and time-consuming. Inherent in the determination of an employment is that the primary purpose of the enterprise in question is, indeed, a commercial one. This is why McCormick and McCormick say their analysis applies only to two college sports – football and men’s basketball. The authors cite data estimating that those two activities account for 97% of all collegiate-sport generated revenue. Their article was published in 2006 and given the explosion in revenues and TV contracts since then, driven almost entirely by football, one would have to assume that the figure is even higher today. As they detail, there is simply no way around the simple straight-forward fact that football and men’s basketball are not, contrary to the NCAA’s claims, primarily educational activities. They are clearly commercial ones. And the individuals being brought to campus to play those two sports are, in fact, being hired to engage in a commercial enterprise.

None other than the legendary coach, Paul “Bear” Bryant long ago put the matter quite clearly:

“I used to go along with the idea that football players on scholarship were ‘student-athletes,’ which is what the NCAA calls them. Meaning a student first, an athlete second. We were kidding ourselves, trying to make it more palatable to the academicians. We don’t have to say that and we shouldn’t. At the level we play, the boy is really an athlete first and a student second.”

That quote comes from a footnote in the article. It’s a fascinating analysis and I will undoubtedly be coming back to it.

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