Counterpoint--introduction: Intercollegiate athletics: Who is "exploiting" whom?

Journal of Law and Education, Jul 2002 by Zirkel, Perry A

In the October 2001 issue of the JouRNAL, law student Christopher Haden first summarized the policy arguments and case law for and against the proposals that student-athletes receive what is commonly called "pay for play."1 Haden then selected one proposal that, in his judgment, properly considers the interests of the individual student-athletes and the legal obstacles to other forms of compensation. More specifically, after his analysis of the conflicting case law in the context of workers' compensation, where the issue is whether the studentathlete is an employee,2 and identification of the legal obstacles purportedly associated with paying student-athletes a wage-like fixed stipend, e.g. taxation-- exemption, Title IX, and antitrust issues, Haden adopted Hurst's and Pressly's solution: A "laundry money" expansion of the athletic scholarship at Division I institutions of higher education.3 However, Haden suggests an increase in the proposed amount of $30-$50 to $100 per month.4 He argues such an enhancement of the scholarship package would provide the student-athlete with sufficient funds to address routine necessities of life and would not invoke costly obligations like paying workers' compensation, losing tax-exemption, providing Title IX proportionality, and committing antitrust violations.5

Their first line of attack is that the majority view of the pertinent workers' compensation court decisions disfavors the status of student-athletes as employees.7 Yet, Haden acknowledged this view8 and expressly incorporated it in his solution.9

Second, Mondello and Beckham advance the federal tax exemption, Title IX, and antitrust obstacles, but, again, Haden's modified proposal takes such impediments into account. However, his accounting arguably understates the Title IX consequences. Mondello and Beckham also weigh in with the National Labor Relations Act specter of unionization of student athletes, but if Haden's "laundry money" veil is not pierced as constituting "wages," this issue again only fits the broader issue and not the selected solution.

Third, Mondello and Beckham raise the costs of the seemingly modest laundry-money solution. Here, their attack hits the mark, inasmuch as Haden's enhanced payment would apply to the many sports at the more than 300 Division I institutions, not the highly publicized and big-money top-35 football and basketball programs. At the same time, they dispute Haden's assertion that student-athletes are prohibited from alternate sources of income, at least employment,10 contending that part-time work, Pell Grants, and the NCAA's Division I Special Assistance Fund are viable present alternatives. Other sources of income could include established special loan programs and endorsement agreements.

Finally, Mondello and Beckham launch their broadest weapon-the argument that student-athletes are exploiting institutions of higher education rather than vice versa.