One of the most controversial question in the modern sports era is, what is an amateur? It seems silly and almost intuitive, but as one delves into the depths of this question, the waters quickly become murky. A quick search of the term yields denotative definitions that we connotatively think of: “a person who engages in a study, sport, or other activity for pleasure rather than for financial benefit or professional reasons,” or, “an athlete who has never competed for payment or for a monetary prize.”

These definitions seem to fit perfectly with how society spends the athletic endeavors of children, until they don’t. A recreational youth soccer league? Clearly amateur. High school football for your local public school? Amateur as well. AAU basketball? A little bit murkier, as these teams receive endorsements, athletic apparel, etc., but are still generally regarded as amateur. Where the public becomes divided on such an issue is in the realm of major college athletics.

The focus of this post will narrow from all major college sports to football. The major reasons for this is the massive amounts of money football teams bring into their schools, and because football is one of the few sports where almost all the scholarships awarded are for the full amount of tuition (many sports award partial scholarships). For some perspective: during the most recent available audit (2011-2012) the NCAA created a revenue of around $872 million, Forbes valued the University of Texas’ football team as being worth $152 million to the university in 2015, and the highest paid coach, Jim Harbaugh, makes around $9 million per year. Comparing this to the average worth of a football scholarship at an NCAA Division I school, $36,070, and one starts to see where the outrage at an “amateur” label comes from.

The incongruity between the label and reality may stem from two scenarios: the first is that, for all intents and purposes, these athletes are being compensated for their skill and performance in their given sport, and second, the massive amounts of money that these “amateurs” are raising for their university. Many argue that the term “amateur” is used simply as a way to compensate the student-athletes for less than their full value, all-the-while reaping the benefits the athletes sow for their respective universities. While this may be the reality at the moment, it seems as if this structure may be crumbling before our eyes.

The National Labor Relations Board’s general counsel stated this week that, “Football players at private universities who compete at the NCAA’s highest level are employees and entitled to protection from unfair labor practices…they perform services for their college and the NCAA, subject to their control, in return for compensation.” As far as how student-athletes have been categorized and treated historically, this statement was earth shattering. In 2015, the Northwestern University football team was denied the ability to unionize, but this can be distinguished because they were attempting to do so for private and PUBLIC universities. The NLRB only holds authority over the 17 private FBS universities as compared to the 129 full-time FBS members. The statement that once seemed groundbreaking, in context, may be more of a tremble.

To qualify the NLRB decision even further, it is not likely the NCAA will accept this decision. The NCAA has pointed to recent US Court of Appeals decisions, such as the 7th Circuit’s case regarding University of Pennsylvania’s Track and Field athletes, to confirm that student-athletes are exactly their name implies, students, not employees. While this “blow” to amateurism might seem to be much smaller than it initially appeared, I see this decision more as the initial crack that might someday break the levee. No matter how small or minute the victory seems, in this field, any admission that student-athletes have definable and protectable rights is immense. The NLRB stated that athletes should be able to speak out against the conditions of their employment in areas such as concussions and player safety, profit sharing and so on. Twenty years ago, the word concussion was almost too taboo to utter in football circles. Twenty years ago, the thought that universities should be actively and affirmatively paying players, not just via scholarships or tuition, held nearly the same status. Even the most cynical view, that the student-athletes have not gained anything tangible from this NLRB memo, one must add the qualifier “yet” onto the end of that statement. The student-athletes have not gained anything tangible, yet. But they have gained the right to speak, and if you think this cannot make a difference, you haven’t been paying attention.

 

Corey Jeremy Goldstein is a J.D. candidate, ’18, at the NYU School of Law.