“Control Over” the D-1 College Football Player, Knitter and Stripper

Let’s say it’s a year ago, and let’s say you’re eighteen years old, a senior in high school, and you live on the family farm in rural Vermont, where you tend to the 30 or so Polled Herefords, about a hundred chickens, two roosters, and Izzy the sow with a litter of 8 piglets.

And, because you’re ambitious and need money, you pick up small jobs on the side, wherever you can. You like to knit, so you start taking in knitting for Fleece on Earth, a North Chittenden clothing maker which provides the designs, patterns and yarn to Vermont “home-knitters” like you who knit on their own schedules, and get paid “by the job.”

And you also like to play football. You’re good at it, so much so that you accept a full scholarship to play offensive line for, say, Virginia Tech.

But when you get to Blacksburg, you realize that the scholarship isn’t really what anyone would call “full”; in fact, within a few weeks, after buying books, and doing laundry, and all the other incidental expenses, you find yourself in the red, so in October you decide to pick up some extra knitting money on the side. Fleece On Earth sends you the stuff you need, and you do about fifteen late-night hours a week. But it’s not enough, you still find yourself short on money. So, on a lark, you try out stripping at a bar downtown, and the money’s good enough so you do two late “Ladies’ Nights” a week.

But the football! You can’t believe it, but your schedule is exactly the way NCAA Pres. Mark Emmert described it to the IMG Sports Conference in NYC two weeks ago: at least 40 hours a week. NCAA rules talk about a maximum of 20 hours per week, but when you take into account all the “voluntary” time everyone knows you’re really required to put in (otherwise you’ll never play a down, a senior tells you) – whether it’s additional lifting or film-study – it’s 40 hours a week, easy. And they want to see your bank account statements, monitor your daily mandatory four-hour Study Hall, keep careful track of every class you attend or don’t, and even make you sign away any rights you might have to “intellectual property” associated with your own “name or likeness.” (“Pictures of your face,” is the way your teammate described it.) And the workouts are really year-round (if you want to ever play a down) And now they’re making it clear you have to stay in Blacksburg next summer, and every summer, doing a job they get for you, so you can be sure to attend the “voluntary” daily summer workouts.

Then in early November you get the letter from Fleece On Earth, telling you that they can’t pay you by the job the way they did last winter, and that have to now pay you by the hour, because the Vermont Supreme Court decided last spring that, under Vermont unemployment law, home-knitters like you are not “Independent Contractors”, but “Employees.”

Then you’re boss at the bar where you strip tells you that, now that he’s taken you on two nights a week, he can’t pay you by the job, and has to pay your by the hour, because the federal courts have established that, under the Fair Labor Standards Act, strippers are not “Independent Contractors”, but “Employees.”

So you go read those legal cases, and you realize that these government agencies (and the courts) told knitting outfits and strip clubs: 1) we could care less what label you use, because we are the government, and we’re going to be the ones who decide who is an Employee for purposes of unemployment, workers compensation, taxation, social security, or whatever; 2) If you want us to classify someone as an Independent contractor, they you have to prove to us that you “don’t exercise a considerable degree of control” over that person’s work. And the courts said, basically, that the knitters and strip clubs DO exercise that considerable degree of control.

Control” you think to yourself. I strip a couple times a week, and I knit at home. And neither Fleece nor the strip club cares when I practice, or where. And they don’t monitor when or if I go to class And they don’t insist on looking at my bank account, or make me sign away other assets or rights I have. And then you think: if I’m a knitting employee, and a stripping employee, how come I’m not a football employee? And I can’t even go home next summer to take care of Izzy and her piglets.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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