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Pay-for-Play Law Review Article by Student Duo Creates Major Buzz

By Andrew Cohen

Although law-review content is written almost entirely by scholars and attorneys, a new article by Berkeley Law students Nicholas Fram ’12 and Thomas Frampton ’12 is making waves in the world of major college sports.

Their article, “A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics,” will be published in August by the Buffalo Law Review. In eye-opening detail, it explains how state labor laws could allow college athletes to unionize—and get paid—for the economic benefits they generate for their schools and the National Collegiate Athletic Association (NCAA).

In a recent Chicago Sun-Times column, Rick Telander wrote: “The paper is as clear as a bell. It is, in fact, fascinating and—dare we say it?— revolutionary.” Telander called it “quite simply an analysis that could blow the NCAA’s big-business model into the ether.”

Over the past few years, the pay-for-play debate has spread throughout college sports as major universities reel in millions from income generated by football and basketball programs. Virtually all Division 1 football and basketball athletes receive full scholarships, but are not paid a salary.

To Fram and Frampton, this constitutes an unfair withholding of funds—which they find especially troublesome given that the NCAA suspends college athletes for trading bowl-game rings for shoes, tattoos, and other items.

“These players should be treated as university employees,” Fram said. “Our research shows that state labor laws would allow them to unionize and legally negotiate with universities over the terms and conditions of their service.”

New Legal Terrain

Classmates, good friends, and members of the California Law Review, Fram and Frampton began exploring the pay-for-play issue last summer. They soon learned that while previous legal research focused on federal labor law, no one had seriously probed how state laws could impact the athletes.

“We wanted to shift the debate to ask what it means to work,” said Frampton, who worked for the United Steelworkers Union over the summer. “When does our legal system recognize a certain form of activity as labor?”

The deeper the students dug, the more surprises they found. While their article focuses mostly on Michigan, Florida, California, and Nebraska, they also address 10 other states that yield potent legal arguments for classifying college athletes as employees.

“Not every state allows public-sector employees to unionize,” Fram said, “but we were still stunned to see just how much was out there.”

Michigan’s state labor board recognizes a union of hundreds of undergraduate resident assistants, Florida’s constitution plainly grants state employees the right to organize, and examples in other states are detailed throughout the article.

In recent years, the National Collegiate Players Association has lobbied the NCAA for improved workplace conditions as well as health and safety benefits for college athletes—hundreds of whom have signed up to join their association.

“This debate won’t be settled in the pages of law review articles,” Frampton said. “But if our research accelerates the push for change, and helps level the playing field, that would be very satisfying.”

3/16/2012