Wage Disparities among Students
It's a simple comparison
Students in Work Study Meet Employee Criteria under the Fair Labor Standards Act (FLSA)
Colleges operate federal and non-federal work study programs to promote part-time employment of students.
Common work study jobs include, for example, clerical and technical support, food service, maintenance, sales and customer service in college offices and departments, libraries, dining halls, facilities and bookstores.
Students in work study meet employee criteria under the FLSA because:
- students in work study perform non-academic functions outside the classroom for no academic credit.
Because of the potential negative impact on academics, the number of hours worked is limited to 20 hours per week, recorded in timesheets.
- students in work study are supervised by college staff, who are hired for the express and full-time purpose of supervising work study.
Courts recognize that, "[i]f an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist." Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 703 (7th Cir. 2015).
- students in work study confer immediate and meaningful benefits that aid in college operation.
In other words, the college is the primary beneficiary in the relationship.
Student Athletes Also Meet Employee Criteria under the FLSA
Similar to students in work study, student athletes are students, first, and their athletic performance outside the classroom, on practice and game fields, is non-academic and for no academic credit.
In recognition that participation in NCAA sports can "interfere with [student athlete] opportunities for acquiring a quality education in a manner consistent with that afforded the general student body," NCAA Division I Constitution Article 2.14, the NCAA purports to limit in season participation to 20 hours per week, recorded in timesheets, much as in work study. See, e.g., NCAA Division I Bylaws 18.104.22.168 and 22.214.171.124.4.
In fact, by comparison to actual part-time hours in work study programs, i.e., 20 hours per week, the NCAA Growth, Opportunities, Aspirations and Learning of Students (GOALS) Study shows participation in NCAA sports is like a full-time job. See the NCAA GOALS table, adjacent.
By comparison to students in work study programs, student athletes are also subject to stricter supervision by full-time, and well-paid, coaches enforcing both the myriad of NCAA / NAIA / NJCAA rules and separate athletic department rules restricting academic and personal choices.
Consider, for example, former Northwestern University QB Kain Colter's testimony before the National Labor Relations Board. (testifying "everything we do is scheduled around football, what classes we can take, what major you could really participate in," and athletic department rules subjected student athletes to department approval, or disapproval, of student athlete speech and use of social media; dress; residential leasing; automobile leasing or purchasing and employment opportunities.)
It is also indisputable that student athletes confer more tangible and intangible benefits on the college than students in work study.
In addition to generating shares of million and billion dollar broadcasting and licensing fees, the athletics program is integral to promotional, commercial and fundraising appeals to prospective and current students, alumni, boosters, donors and general supporters. The athletics program is the tie that binds all these constituent groups together. "School spirit" is linked to sports. Mascots, fight songs, and college apparel lack meaning without reference to the athletics program.
Students in Work Study Are Paid above the federal minimum-Wage TO work at Athletic Events and Sell Athletic-licensed Merchandise
According to the U.S. Department of Labor's Bureau of Labor Statistics, the student ticket takers, seating attendants, and food concession workers at athletic events are paid, on average, $9.86 per hour to $13.29 per hour.
John Oliver noted on his HBO program Last Week Tonight that it "seems a little bit strange" for student athletes to be paid less than "the kid selling their jersey at the campus bookstore."
Students who sell athletic- licensed merchandise at the campus bookstore are paid, on average, $12.67 per hour to $14.05 per hour.
BUT STUDENT ATHLETES, WHOSE athletic PERFORMANCE CREATES WORK STUDY JOBS FOR FELLOW STUDENTS, ARE PAID NOTHING
the ncaA Is right about one thing:
Scholarships Are Not Pay for Athletic Performance
Both academic and athletic scholarships are grants-in-aid designed to assist academically eligible students and/or their families in defraying costs of attendance.
Both academic and athletic scholarships are not taxable income as applied to qualified education expenses. If a scholarship were to “represent payment for teaching, research, or other services required as a condition for receiving the scholarship,” the scholarship would be taxable income. See U.S. Department of Treasury, Internal Revenue Service. Tax Benefits for Education. IRS Pub. 970. Chapter 1. Scholarships, Fellowship Grants, Grants, and Tuition Reductions.
Just as an academic scholarship is not pay for preparation for and/or participation in class, an athletic scholarship is not pay for preparation for and/or participation in NCAA athletics.
The NCAA has asserted and/or admitted that an athletic scholarship is not pay in legal proceedings under the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. (“NLRA”), see, e.g., In re: Northwestern Univ. and College Athletes Players Ass'n, Case No. 13-RC-121359 (NLRB), and under the Sherman and Clayton Antitrust Acts, 15 U.S.C. §§ 1-7, 12-27, see, e.g., In re: NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 4:14-md-02541 (N.D. Cal.).
Furthermore, any student on academic scholarship, who also participates in a work study program, is paid at least federal minimum-wage for hours worked in clerical and technical support, food service, maintenance, sales and customer service in college offices and departments, libraries, dining halls, facilities and bookstores.