Concussion lawsuits have become an increasingly hot topic over the past decade as we’ve learned more about the long-term dangers concussions can pose to the human brain. While NFL concussion lawsuits for workers’ compensation have been highly publicized, less attention has been paid to NCAA players with similar injuries. Lawsuits for sports-related injuries at this level have been largely unsuccessful due to the “amateur” model that controls and defines college sports. This post will examine two current issues dealing with college athletes’ rights that could profoundly impact availability of workers’ compensation for student-athletes. However, I will ultimately argue that from a purely workers’ compensation perspective, there is a much easier and less disruptive way for athletes to get paid for their injuries.

Workers’ compensation statutes were enacted to provide compensation to employees or their estates for job-related injuries. Each state generally has its own very specific statute and most of them require that the recipient of the workers’ compensation be defined as an employee. At a basic level, workers’ compensation for collegiate athletes hinges on whether an employer-employee relationship exists between athletes and their schools.

Up until recently, attempts at finding an employer-employee relationship between athletes and universities were consistently rejected by courts. There were a few early cases where athletes prevailed, but the holdings lost their relevance as the NCAA introduced its amateur rules.

Currently, there are two major happenings that threaten to override the existing case law. First, in In Re: NCAA Student-Athlete Name and Likeness Licensing Litigation (“O’Bannon”) former UCLA basketball star, Ed O’Bannon, filed suit against the NCAA and others for failure to compensate him during and after his collegiate athletics career for commercial use of his name, image and likeness. If O’Bannon succeeds, college athletes could be compensated for their athletic services and an athlete could then be considered an employee and become entitled to workers’ compensation under many state laws.

Second, the National Labor Relations Board (“NLRB”) recently granted Northwestern football players the right to unionize, noting that they were “employees” of the university. This decision only affects Northwestern and it will likely be appealed to the NLRB proper, and if necessary, to federal court. If collegiate unionization survives on appeal and/or in court, which I don’t think it will, the logistics of the union will be very difficult to navigate. Given the disparities in profits across sports, difficult (and perhaps impracticable) decisions would have to be made regarding the criteria necessary for unionization, which athletes should be grouped into a given bargaining unit, and whether the NCAA, the conference or each individual university should serve as the “employer.” If student-athletes are allowed to unionize, they could potentially go on strike, which would impact the college program, waste student-athletes’ eligibility and negatively affect their athletic career and development. Further, there will be administrative costs due to player turnover that will inevitably occur every year.

There is no doubt that a decision for the players at Northwestern and in O’Bannon would be a positive outcome for the numerous athletes who are arguably risking millions of dollars in future earnings by participating in college sports. It would also provide equitable relief to players with injuries like concussions that last well beyond their time in college. On the other hand, the implications of viewing athletes as employees will have profound costs and administrative concerns for universities, including those related to Title IX and universities’ eligibility for taxation as “amateur athletic organizations.” The existence of an employer-employee relationship could ultimately destroy the amateur model and college sports as we know them.

In my view, there is an easier way to compensate collegiate athletes for their injuries. Given the potentially complicated and detrimental results of the Northwestern case and O’Bannon, perhaps the most realistic and equitable solution to the workers’ compensation problem is to provide some sort of injury reimbursement for athletes without creating an employer-employee relationship. For example, the current health insurance program for college athletes is complicated and inadequate. Although almost all NCAA schools provide insurance for their student-athletes, there are still some schools that don’t provide coverage. In these instances, student-athletes can be left with significant personal medical bills. Even where coverage is provided, it can be very specific and often doesn’t cover everything. For very severe injuries, athletes may be entitled to care under the NCAA’s “Catastrophic Insurance Program,” which provides coverage for athletes whose injuries result in $90,000 or more of medical bills. In 1990 the NCAA implemented the Exceptional Student-Athlete Disability Insurance Program (“ESDI”), which provides disability insurance to athletes that will likely be selected in the first three rounds of the NFL, MLB, NHL, NBA, or WNBA drafts. Unfortunately, the ESDI is not as effective as it could be due to its high cost, inadequate coverage of “non-total disability” injuries, and the fact that it only covers certain athletes based on sport and talent level.

The most effective solution to the workers’ compensation issue will not try to force the complex and potentially catastrophic employer-employee relationship on the college athletics model. Rather, it will address the gaps in the current medical insurance model by decreasing deductibles and providing some sort of remuneration for long-lasting injuries like concussions. In this way, we can find a way to win for both athletes and the NCAA.

Elizabeth Polido is a J.D. candidate, ’15, at the NYU School of Law.

more »