Do college athletes have a constitutional right to be paid a salary?

Lyle Denniston looks at claims by the NCAA that the desire of Northwestern University football players to unionize should be decided by the Supreme Court.

The statements at issue:

“This will get to the Supreme Court, it’s such a fundamental change.”

 – Mark Emmert, president of the National Collegiate Athletic Association, on the March 30 broadcast of CBS-TV’s “Face the Nation” program, on the dispute over potential unionization of football players at Northwestern University.

“We strongly disagree with the notion that student-athletes are employees.  We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience for the love of their sport, not to be paid….We do not need to throw away a system that has helped literally millions of students over the past decade alone attend college,.  We want student-athletes…focused on what matters most – finding success in the classroom, on the field and in life.”

 – Donald Remy, the NCAA’s chief legal officer, in a statement on March 26 about the Northwestern University dispute. 

We checked the Constitution, and...

Congress, using its powers under Article I, has broad power to pass laws – so broad that, if it is careful how it uses that authority, it can even do such things as control how fast Americans are allowed to drive on the highways, or regulate the safety of baby strollers.  But that power is not unlimited, and it may not be expansive enough to compel private universities to pay salaries to their football players or other athletes, even though the endeavors of those undergraduate gladiators as a group help generate billions of dollars for their schools.

If, as the president of the NCAA, the regulator of college sports, said on television this past weekend, this question reaches the Supreme Court, the Justices will face two questions.  First, did Congress intend college football players to be treated as employees of the universities that they attend?  Second, if so, did it have the constitutional authority to require that?

It should be noted, up-front, that this issue – in a case involving Northwestern University – has to go first to the National Labor Relations Board in Washington, D.C.   An appeal to the Board is due by April 9.  So far, only a regional director of the Board in Chicago, Peter Sung Ohr, has ruled that Northwestern’s football players are employees with a right under federal labor law to join labor unions and bargain for wages and other benefits.  Northwestern has said it will appeal that to the five-member Board.  The loser before the Board could then appeal to a federal appeals court before a case would go on to the Supreme Court.

It also should be noted that this dispute only involves private universities.  The National Labor Relations Act, first passed by Congress in 1935 as part of the New Deal, does not cover those who work for state or local governments – such as a state college.  If state employees have any rights on the job, that would have to come from a state law, not from Congress.

One thing that will guide the Court, if the college football players issue gets there, will be a comment it made in an earlier college case, that “the principles developed for use in the industrial setting cannot be imposed blindly on the academic world,” because it is basically a different world.   The Court said that in 1980, when it ruled that faculty members of Yeshiva University are not regular employees, under the federal Act.

And the NLRB itself relied partly upon that principle when it ruled ten years ago, in a case involving Brown University, that graduate students working as teaching assistants, research assistants, and test proctors were not employees under the law.  That decision overturned a ruling by a regional director that those students were covered by the Act.

In the Northwestern University football players’ case, Regional Director Ohr examined at considerable length the daily, even hourly, lives of college football players, and concluded that they are paid with scholarship money to do work for their institutions as employees, with the primary focus on their football duties and with comparatively little attention to their academic pursuits.  In short, these are revenue-producing paid athletes first, and students only incidentally.

As the NCAA president said, this approach would mean a “fundamental change.”  For one thing, it would come close to destroying the notion – somewhat romantic in the modern world of big-time, huge-revenue college sports – that athletes are there for “the love of their sport.”   But, at a more fundamental level, it might question the core notion that the purpose of universities – at least in their sports programs — is to educate, not to hire gladiators to prepare at least the best of them for life in the pro leagues.

The federal law at issue does not solve the problem easily, because it does not define “employee” in specific terms.  The Supreme Court, in a 1995 decision, said that an employee under the Act “is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”   That, Regional Director Ohr said, fits scholarship-aided football players at Northwestern.

Northwestern University obviously cares enough about the outcome of this case (and obviously will have the NCAA on its side) that it surely will mount a broad challenge to Ohr’s decision before the Board.  Its beginning focus, of course, will be a claim that Congress had no intention of including college student-athletes under the definition of paid workers.

But, depending upon how much confidence it has in that argument, it also might be tempted to go further and make an argument that Congress did not have the authority under Article I to reach into academic life and turn students into paid staff members.  That may well be what NCAA President Emmert had at least partly in mind when he spoke of this dispute as one involving “a fundamental change.”

In fact, at the time the National Labor Relations Act was passed, “it was thought that congressional power did not extend to university faculties because they were employed by nonprofit institutions which did not affect commerce,” the Supreme Court noted in 1980.  While that comment is probably out of date, since few would argue that college sports programs today have no impact on interstate commerce, it could serve as a warning reminder that there are limits to congressional authority.

Indeed, the current Supreme Court has, from time to time, shown skepticism about how far Congress can go to regulate commercial life – most recently, in the part of last year’s federal health care decision applying limits to Congress’s authority under its power to regulate interstate commerce.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Philadelphia’s National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center’s blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America’s history and a variety of expert contributors.