How Classifying Athletes as Employees Can Save Colleges Money
WHY YOU SHOULD CARE
Because moral motivations are long gone.
In the 1950s, the NCAA created a monster more insidious than anything in ancient myth. To combat the rising pressure to provide workers’ compensation policies for athletes, the college athletics governing body crafted the term “student-athlete” to provide legal cover for the members of its cartel. Six decades later, the beast has bitten its creator’s hand. As college basketball’s national champion is crowned and fans gather for spring football games this weekend, is it time to slay the beast once and for all — with an insurance underwriter?
Lawsuits filed against the NCAA, individual member schools, athletic conferences and their employees have risen over the past two years, with more than 100 claims in federal and state courts.
In nearly identical fashion, the complaints state that former athletes suffer long-term symptoms of injuries sustained while playing college sports. Most of them are neurological symptoms caused by head trauma. The defendants are liable for damages, the suits allege, because they neglected to inform the plaintiffs of the risks and/or provided improper care.
According to a 2016 study, 30 percent of NCAA members do not provide any health insurance for their athletes.
Last year Ploetz v. NCAA resulted in an undisclosed settlement, and that’s a likely outcome in many of the other cases. Given the costs in defending the suits and paying out damages, it’s time for the NCAA and its schools to buy workers’ compensation insurance on its athletes — for the sake of the bottom line.
A common defense against the claims made in such cases is “no duty of care,” meaning the defendant was not responsible for providing medical care when the injury was sustained. Attorney and sports law professor Jaime M. Miettinen, who has litigated workers’ compensation cases in her practice, believes workers’ compensation policies wouldn’t absolutely insulate the defendants from all liability, but they would provide a shield from a former athlete suing for pain and suffering, thereby capping the amount of damages.
But given the well-documented injury risks in football, would schools or the NCAA even be able to buy workers’ compensation insurance? Ivan F. Soto, an insurance industry veteran who is also the executive director of the Arena Football League Players Union, says underwriters would be willing to provide such coverage using a “community rating system” that puts all the NCAA’s members in a pool. For each school, he says, it would cost about $1 million per year.
That sounds high, but in an era when Ohio State paid Oregon State $1.7 million for a home football game last year, universities should be able to find room in their budgets for workers’ comp.
Their current coverage is sorely lacking. According to a 2016 study by the NCAA, 30 percent of its members do not provide any health insurance for their athletes. The NCAA does carry a catastrophic injury policy for athletes, with an annual deductible of either $75,000 or $90,000 that the institution or the athlete must meet. That policy also has a cap of $175,000 for the first decade after an injury and $70,000 for the second decade, the number decreasing as the athlete ages.
For non-catastrophic injuries — the subject of lawsuits like those brought by former football players John Askin (Notre Dame) and Gary Easley (North Texas) — coverage can be spotty. The NCAA’s research states that 44 percent of its members do not provide coverage for prescription drugs. For those athletes who sustain non-catastrophic injuries during their time playing sports for their schools, only 31 percent of NCAA member institutions provide coverage that lasts beyond when athletes leave the school or exhaust their eligibility. Workers’ compensation policies would fill in all these gaps.
One of the biggest concerns that universities have about providing workers’ compensation to athletes is that doing so would be tantamount to classifying them as employees. Miettinen believes a compromise could be found as long as the NCAA and its members work with a neutral third party, such as North Carolina’s Legislative Commission on the Fair Treatment of College Student-Athletes, to avoid antitrust concerns.
In the debate over fairly compensating athletes — or even properly insuring them for the risks they incur while generating billions of dollars in revenue — moral motivations are clearly not a consideration for the NCAA and its members. But because of the monster they created, they’ll end up paying one way or another.
Read more: How the NCAA seized control of college sports.