Kain Colter is an Employee by Professor Steven Willborn

The following op-ed is written by Professor Steven Willborn, the Judge Harry A. Spencer Professor of Law at the University of Nebraska College of Law (where he served as the Dean between 2001 and 2009).

Steve was my mentor when I started as a law professor back in 2005 and while I was a member of the Southeastern Association of Law Schools. He is one of the most insightful persons in the legal academy, and is a leading expert on education law, labor law and employment law.-- Mike McCann

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Kain Colter is an Employee

Steve Willborn

Spencer Professor of Law, University of Nebraska

Kain Colter, a quarterback, is trying to unionize the Northwestern football team, and the NCAA is worried. To unionize under the National Labor Relations Act (NLRA), Colter needs to prove he is an “employee.” The NCAA fears that labeling college athletes as employees will upend the entire structure of college athletics. It is most worried about one part of that structure – the financial structure which produces billions in revenues with a primary workforce that earns, well, not much.

It turns out that Colter is an employee, but the NCAA should not be so worried. Instead, it should plan for the day when college athletes are considered employees.

Whether Colter is an employee under the NLRA is a close call. The closest cases involve teaching assistants at universities. The National Labor Relations Board has held that they are “primarily students” and, thus, not employees under the NLRA. But some of the reasons the Board gives for teaching assistants do not apply to college athletes, such as the close tie between teaching and academic program and the close personal relationships with professors. But maybe the Board will think Colter is more like a singer in the chorus at the Seattle Opera than a teaching assistant. These singers signed “letters of intent” to sing with the opera, worked under close supervision, and received minimal compensation. The Board found them to be employees. Maybe that’s the better analogy. In either event, it’s a close call for Colter.

But even if Colter is not an employee under the NLRA, it does not mean he is not an employee under every statute everywhere. He may have a stronger claim that he is an employee under the Fair Labor Standards Act, which requires minimum wages and overtime premiums. If injured, he might seek damages as an employee under the workers’ compensation laws. If sexually or racially harassed, he might seek recourse under employment discrimination statutes. (Things like that have been known to happen in football.) Colter himself might be an employee under dozens of different statutes. Nationally, college athletes could make claims under hundreds of different employment statutes, each with their own definition of “employee.” This is why Colter is an employee. Even if he is not one under the NLRA, he is one somewhere, for some purpose. Looking beyond Colter, college athletes have so many opportunities to make the claim under so many statutes that, someday, somewhere, they are sure to be classified as employees.

The NCAA should be worried about this. Many of its regulations simply do not align well with some employment statutes. But the NCAA shouldn’t be completely distraught. Unionization, for example, would not necessarily conflict at all with any NCAA regulations. It would only require Northwestern to sit down with the football players and talk. No violation there; the NCAA says it already does that. The NLRA doesn’t require the NCAA or Northwestern to agree to any changes the players might demand that would conflict with current practices. None. Similarly, I do not know of any NCAA regulations that say that college athletes cannot seek full recourse if they are sexually or racially harassed.

Some employment regulation would conflict with current NCAA policies. The NCAA’s current practices, for example, would run into trouble under the Fair Labor Standards Act which requires modest payments for work, mostly in cash. But maybe requiring “fair” labor standards wouldn’t be a bad thing? Maybe it would even be a good thing?

So, yes, the NCAA should worry. But mostly it should plan for the inevitable day when college athletes are determined to be employees. The NCAA will have a more challenging task when that day arrives. Complying with employment laws is complicated and expensive. But that’s true for all employers. For better or worse, we as a society have decided that those complications are worth it to ensure fair wages, nondiscrimination, and the other things protected by employment statutes.

If it tries hard, the NCAA will be able to accommodate to this new world. We know that sports leagues can be managed even when the players are employees. There are a few fairly well-known sports leagues that manage to operate under that condition, such as the National Football League and the National Basketball Association. (Although their profit margins tend to be much lower than those of big-time college football teams.) It can be done.

So Kain Colter may win his NLRA case and be an employee. Or he may lose and we will have to wait for the day when he or another college athlete is determined to be an employee under some other employment statute. But that day will come. And the NCAA should begin planning for that day now.

Alan Milstein on lawsuit filed by Jeffrey Kessler against NCAA

Our own Alan Milstein has some terrific insight on the new NCAA lawsuit in this article by Erin McClaim for NBC News, including raising the issue of whether high school players may hire agents if they can negotiate compensation with colleges.

Here is an excerpt:

Milstein said he believes this case goes several steps beyond the other NCAA lawsuits — and probably a step too far.

He stressed that he is a strong critic of the NCAA, which he described as a “walking, talking antitrust violation,” and supports a system under which college athletes would be paid an hourly wage, just as students working the concession stand are.

They could even be allowed to negotiate their own shoe endorsements, he said, but the suit filed this week would lead to universities’ gambling huge sums of money on high school stars with agents, he said.

“I don’t think anybody wants college athletics to become pro athletics,” he said. “This essentially says the schools are going to compete and pay the highest bidder for the star athletes. I think we’re a long way from that ever becoming an eventuality.”

To read the rest, click here.

Judge Wilken deems Alston v. NCAA a Related Case to O'Bannon and Keller v. NCAA

In a move that will make it harder for the NCAA to transfer the ever-expanding In Re NCAA litigation out of California to another court, such as one in Indiana, Judge Claudia Wilken has just deemed former West Virginia running back Shawne Alston's lawsuit v. NCAA to be a related case.  Alston sued the NCAA earlier this month in the the U.S. District Court for the Northern District of California -- the same court hearing O'Bannon and Keller -- arguing restrictions on athletic scholarships violates antitrust law.  He hopes the suit will become a class action.  Today was also eventful because four current players, led by sports attorney Jeffrey Kessler, sued the NCAA over athletic scholarships in a lawsuit similar to one brought by Alston (Kessler's case is unaffected by Judge Wilken's order).

One of Alston's lead attorneys, Jon King of Hagens Berman, explained to me the impact of Judge Wiken's order:

1. McCann: Am I right that this means that the Alston case is now, like Keller and O'Bannon, part of In: Re NCAA? 

Jon King: Yes, although all 3 cases will proceed on different schedules – just as Keller and O’Bannon currently are on different schedules.  The main import of today’s ruling is that it will make it much tougher for the NCAA or the Conference Defendants to successfully argue that the Alston case should be transferred to another district court, such as in Indiana, where the NCAA is headquartered.

2. McCann: Will you and other lawyers for Alston be part of the decision-making process for the plaintiffs in O'Bannon and Keller?

 

Jon King: No -- everything is separate in terms of the decision-making – but it happens to be that my firm is lead counsel in Keller, and one of the two firms that filed Alston – the effect of a “related case order” like today’s is really more about the Judge –means that the Judge will have oversight over all of the cases and make sure they are all coordinated and efficient – that is a lot easier to do if one judge is presiding over all of the cases – for example, it can help so that the same witness does not need to be deposed multiple times by multiple groups of plaintiffs – can get everything coordinated in one spot and on one day.  Some of this is easier said than done, but definitely easier to do if only one judge involved.

3. McCann: I assume this also means that, given the similarities of Kessler's case to the Alston case, Kessler's case may eventually be deemed a related case as well, even if filed in a different state?

Jon King: It is a more complicated question as to his case – because it was filed in another federal court, in New Jersey, as opposed to here in the Bay Area – there are a few other ways in which cases in these circumstances can be combined – one of the ways is by going before the Judicial Panel on Multidistrict Litigation, a panel of 7 federal judges that decides where to centralize cases where there are similar ones in different districts around the country.

Testing the NBA Draft Waters in 2014

As you fill out your brackets for the impending NCAA March Madness tournament, it's time for my yearly rant on the preposterous rules that the NCAA imposes on men's basketball players and their ability to consider leaving early for the NBA. Want to know how absurd the NCAA's rule regarding their NBA draft early-entry deadline is? It has been called "one of the silliest, most cynical and least student-athlete-friendly decisions ever." [And there is a significant amount of competition by the NCAA for this award.]
Consider the following:

1. The NBA's draft eligibility rules, found in Article X, Section 1 of the CBA, require that a player be 19 years old, thus the concept of "one and done";
2. In a rare moment of logic, the NCAA used to allow prospects to "test the waters" by working out with teams and getting an appraisal from the NBA's Undergraduate Advisory Committee on their draft potential;
3. The NBA has several deadlines regarding entry into the 2014 Draft, they are: 
• April 27th: Deadline to declare for the NBA draft
• May 20th: NBA draft lottery
• June 16th: Deadline to withdraw from the NBA draft
• June 28th: 2014 NBA Draft
4. The NCAA also has a deadline by which players must declare their intention to return to college. The kicker? The NCAA requires that college athletes announce by April 15th.  A full 62 days before the NBA requires they do so.

Thus, the incongruity of these deadlines, the NCAA requires a decision before ANY of the NBA dates kick in. It is no coincidence that the NCAA deadline of April 15th is early, it's so that college coaches are able to know who is returning to their rosters before the April 16th men's basketball signing period. This imposed deadline was created with the direct purpose of assisting in recruiting and has nothing to do with what's best for the college athletes.

The NCAA program which allowed prospects the ability to work out and get an unbiased and informed perspective on their pro potential is moot. Why? Because NBA teams won't work out players until their deadline (April 27th) has passed and someone has declared for the draft. And despite NBA Commissioner Adam Silver's intent on having the NBA, NBPA, and NCAA all in a room agreeing upon dates, age eligibility requirements, and other issues (as reported here at Boston College's Chief Executives' Club of Boston event) there is the legal barrier to this conversation ever taking place: collusion. The NCAA is not a legally recognized bargaining entity.

There's been plenty written about the absurdity of these rules:

1. In 2011 I wrote a law review article outlining the history of the NBA draft and arguing for change;


2. Darren Heitner wrote this piece. Marc Isenberg penned this article. Andy Katz here and here, Eamonn Brennan here.


3. There was, of course, the great and path-breaking law review article written in 2004 by our own Michael McCann titled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft."  McCann was the first person to show through empirical analysis of both on and off the court performance that players skipping college were the best players in the NBA and that an age restriction is irrational. McCann followed up Illegal Defense in 2005 with an empirical study on NBA players who have been arrested and their education level.

Again, nothing new in this post, just a reminder of the asinine nature of the NCAA restricting college students from making an informed choice about their future careers.

Postscript: The Ends Do Not Justify the Means in MLB's Current PED Investigation

I previously wrote that the ends do not justify the means in MLB's PED investigation, and that payments to witnesses for testimony are unethical.

Now, the New York State Bar Association has come out with Ethics Opinion 997 that reiterates that lawyers may not pay for witness testimony beyond reasonable time and expenses incurred by that witness (for some strange reason, purchasing physical evidence is now O.K. in New York).

So if it is true that MLB's lawyers participated in paying witnesses in the A-Rod case millions of dollars, and if the arbitrator allowed such testimony, what will happen to these lawyers and arbitrator?

We'll have to wait to see, but no matter how big or powerful, good trial lawyers know that if you have to pay for testimony, you don't have a case, and these ethics rules don't change, just because you want to bag a big bad fish.

Moreover, just like I predicted, this lawsuit was dropped by MLB once A-Rod capitulated, which proves that it was frivolous to begin with and designed solely to procure "evidence" that MLB otherwise could not have gained.

I'm sure that people feel as sorry for A-Rod as they do for Lance, but however good it feels to see these guys brought to justice so-to-speak, Justice is not done, when lawyers and arbitrators engage in illegal use of paid witness testimony, and everyone involved should be, at the very least, embarrassed, if not ashamed.

Gambling v. PEDs and the Baseball Hall of Fame

Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. The excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic and uncertainty that surrounds PEDs.

But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.

Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.

Much sports procedure

Just by coincidence, Deadspin has three stories that touch on the importance of procedure in and around sport.

1) Jonathan Mahler promotes the argument that the way to get the NCAA is for a single college athlete or high school senior to seek a declaratory judgment that NCAA rules regarding student-athlete compensation violate the antitrust law and an injunction against continued enforcement of those rules. Mahler argues that this lawsuit and this more-limited remedy avoids the extensive delays, distractions, and discovery that come with class actions and with claims for damages. The Unfortunately, the article ignores a few other procedural issues that could present problems, including standing and mootness (the NCAA might run out the clock until the player uses up his eligibility, mooting his request for injunctive relief).

2) Tampa Bay Rays manager Joe Maddon is drilling his players on continuing plays after the apparent third out of an inning, in case the third out is overturned on video review. The idea is that this can affect where the runners are placed after review. If the Rays defense get a "fourth out", that becomes the third out and the inning still ends. And if the Rays offense keeps running, the runners may get the extra base when the umpires replace them after video review. There are holes in the replay system that MLB has not yet even anticipated.

3) This story discusses the controversy over the women's indoor 3000 meters championship two weeks ago, which revolved around appeals procedures their manipulation, the too-cozy relationship between Nike and USATF, and the limits of video evidence as showing anything "conclusive" or "objective."