Are college athletes same as prisoners? Judges of Penn track athletes' lawsuit think so

The phrase "student-athlete" will be repeated with chanting monotony during the college football national championship week, so let's pause to consider that talcum-dull term. It would be nice to find a better phrase, but what to replace it with? Scholarship athletes are uniquely hard to describe, somehow more loaded with privileges and responsibilities than the average student-cheerleader or student-student. What should we compare them to? Apprentices? This question was recently put to a panel of NCAA-friendly federal judges, who after due consideration came up with their own startling comparison: prisoners.

That's right. Prisoners.

The case is called Berger v. NCAA, and in it, some track runners from Penn contended that athletes put in enough work at universities to be entitled to minimum wage under the Fair Labor Standards Act. It's one of a raft of cases seeking pay for college athletes, and it wouldn't stand out except for the obnoxious grounds on which it has been summarily dismissed by a three-judge panel for the U.S Court of Appeals for the Seventh Circuit, the NCAA's home court. The majority opinion reasoned that college athletes have no more right to ask whether they might be employees than inmates laboring in jails. A plea for a rehearing en banc was rejected by the Seventh Circuit Wednesday night.

Plaintiff attorney Paul McDonald summarized the result of the decision. "Student athletes now join prisoners as the only citizens who, as a matter of law, cannot be considered employees," he said.

Fortunately, this won't be the last of the issue. A similar case is going forward in California, brought by former Southern Cal linebacker Lamar Dawson, claiming that Pac-12 men's football and basketball players constitute employees. Also McDonald is considering a Supreme Court petition.

The arguments in Berger and Dawson may or may not be persuasive - but surely they deserve at least to be heard, as opposed to this preemptory clanging shut of a cell door.

Personally, I'm unconvinced that athletes should be directly paid by their universities. I believe they are well-recompensed through their scholarships, and if we want to give them more, we should enhance their educations, while letting them earn what they can off the field from their likenesses and jersey sales. Also, labor law doesn't strike me as the right tool for solving the yawning inequities and complexities of an NCAA system that generates a half-billion dollars in football bowl payouts, yet also supports myriad red-ink non-revenue sports. Still, I would like to hear a legal consideration of the murky labor relationship athletes have to their campuses, which receive such enormous yield from their work.

That would seem an important and overdue exercise, just as it was an important and overdue exercise for courts to ask whether companies were taking advantage of unpaid interns.

There would seem to be nothing wrong - nothing at all - with asking that question. This is all Berger sought, "a legitimate fleshing out of the issues," McDonald said.

Usually in FLSA cases, there is a "fact-intensive" multi-pronged inquiry to determine if someone has been unfairly used, and is entitled to a minimum wage. In the case of interns, the Department of Labor and a series of recent federal court decisions have spelled out the questions that should be used to test whether an intern has performed wage-earning work. In a case called Glatt V. Fox Searchlight, involving unpaid film interns, the Second Circuit spelled out the following specific test factors:

To what extent is their training similar to what they would receive in an educational setting? Does the experience benefit the intern? Does it provide immediate advantage to the employer? Does their work displace regular employees? Does the intern get academic credit for the experience? Is the experience tied to coursework? Does it accommodate the academic calendar? And does it provide significant educational benefit? Is there a clear understanding there is no entitlement to cash compensation?

These would seem to be exactly the sort of specific questions we should be asking about athletes on campus, especially ones who drive large revenues. We need to ask, "Is this academic, or is this work?"

But the judges were determined not to ask such questions in Berger. Instead, at both the district and circuit levels, they threw the case out by using a single piece of case law, Vanskike V. Peters, involving convicts. In Vanskike, an inmate at a state prison in Joliet, Ill., had asked for wages. The Seventh Circuit declined to apply the test questions in that instance because asking who benefits from an inmate's labor was nonsensical, and didn't "capture" the "real relationship" of prisoner to prison.

So, to be clear, the best way to "capture" the relationship of athletes to campus is to view them as detainees?

The Seventh Circuit's contorted reasoning bears repeating. College athletes are similar to prisoners economically because the "revered tradition of amateurism" in college spanning than 100 years "defines the economic reality of the relationship between student-athletes and their schools," the court wrote. As with inmates, asking any questions about who benefits from their work would "fail to capture the true nature of their relationship." In other words, amateurism is as confining and defining as jail.

Then the court went one step further and declared, "Simply put, student-athletic 'play' is not 'work,' as least as the term is used in the FLSA."

Now, those of us who might be inclined to agree with that statement would like to see it grounded in more than an inmate case. But the Seventh Circuit shut down further discussion. "No discovery or further development of the record" would be helpful, it wrote.

Actually, it would be helpful. It would be very, very helpful indeed.

The true nature of the athlete's relationship to campus needs to be captured. Badly. For one thing, it has changed dramatically over a century. A hundred years ago, coaches were unpaid volunteers. Now Alabama's Nick Saban earns as much almost $7 million a year, and Michigan's Jim Harbaugh $9 million, with contractual bonuses for wins, and they determine the hours and activities of athletes more powerfully than any employer. Athletes might be "amateur," but they put in more hard labor than any work-study student toiling in the college library or cafeteria for wages. Even the collegians manning the concessions in the stadiums on game day make $7.25 an hour. McDonald likens the situation of college athletes to "work-study on steroids."

College athletes should have an avenue to ask hard questions about their situation on campus. Are they working unreasonable overtime hours that make it hard to progress to a degree? Is their experience advancing or impeding their education?

The answer will not necessarily result in a slam-dunk ruling against the NCAA. It might actually favor the status quo and demonstrate the real values of scholarship and the educational content of varsity sports. But in the Berger case, we'll never know - because the judges were apparently too alarmed to even ask the questions.