By Jill Pilgrim, Esq. and Aisha McKinney^[1]

As mentioned in Part I of this series, the media and general public tend to believe athletes are entitled to some class of inherent rights, but rarely do they clearly define the nature and source of these rights.  In Part I of this article, we approached the topic of athletes’ rights by first addressing the importance of identifying the class of athlete: adolescent or adult.  We now turn to the equally important distinction between amateur and professional athletes.

Amateur Athlete

When one thinks of the term amateur, what typically comes to mind is an adolescent athlete who lacks the skill necessary to earn her living as a professional paid athlete.[2]  In fact, the term amateur is more accurately defined as an individual who satisfies the “amateur” eligibility requirements of a particular organization or, stated in the reverse, who does not meet the applicable eligibility requirements for being a professional.  Thus, we must look to the guidelines provided by the governing organizations of amateur sports to determine who is an amateur under its rules.

The National Collegiate Athletic Association (“NCAA”), the governing body for intercollegiate athletic competition across a myriad of sports, is a non-profit membership association consisting of institutions of higher education, their regional athletic conferences, and other sports organizations that organize athletic programs in which collegiate athletes compete in the United States.  In its bylaws, the NCAA doesn’t affirmatively set forth the definition or criteria for an amateur athlete, instead the term is defined in the negative by means of articulating the ways in which a student athlete may lose his or her amateur status.[3]  Thus, the NCAA bylaws state:

An individual loses amateur status when he or she:

1)         uses his or her athletic skills for pay in any form in that sport;

2)         accepts a promise of pay even if such pay is following the completion of intercollegiate

athletics participation;

3)         signs a contract or commitment of any kind to play professional athletics;

4)         receives a salary or reimbursement of expenses from a professional sports

organization; or

5)         competes on any professional athletics team even if no pay is received; or

6)         enters into an agreement with an agent. [4]

It is important to note that the NCAA bylaws do not mention age as a criterion of amateurism, although some amateur sports are concerned with age for safety purposes. The most common example of age and safety concerns can be found in USA Gymnastics where age plays a role in the determination of whether an athlete is amateur or professional.  In this sport it is required that an athlete compete as a junior professional upon reaching the age of sixteen.[5]  Additionally before the age of sixteen, athletes must be separated into various levels based upon age classifications.[6]  A similar example can also be found in the U.S. Tennis Federation junior tennis tournaments where age determines the sort of matches each athlete competes in.[7]  So while the age of athletes typically does not play a role in determining amateur status, it is important to note that this may differ from sport to sport. As such, the age of amateur athletes will vary across differing sports and sports leagues, therefore the legal rights of these different classes of amateurs will vary due to their classifications as either adult or adolescent.

Another example is provided by the Florida High School Athletic Association (“FHSAA”), which is a member entity of the National Federation of State High School Associations (“NFSHSA”), and governs the organization of interscholastic sport competitions for high schools in Florida.  FHSAA also defines an amateur student athlete in the negative and in terms of what is prohibited, namely:

1)         no compensation in any form;

2)         no participation in a professional sports competition; and

3)         no representation by an agent.[8]

In contrast, some other amateur sport governing organizations don’t provide either an affirmative or negative definition–prohibited activity–of what constitutes an amateur athlete.  They simply defer the determination of eligibility status to the governing bodies of the sport in which the athlete competes. Thus, the United States Olympic Committee defines amateur athlete to mean “any athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes”.[9]

In sum, the key characteristics of amateurism appear to be that the individual is not receiving compensation for sports play, is not playing sports with persons who are professional athletes, and does not have agent representation.

Professional Athlete

Much like the definition of an amateur athlete, the definition of a professional athlete is often not clearly defined by any of the professional sport governing bodies.  Instead, we must look to general definitions or definitions provided by amateur sport governing bodies to obtain the characteristics of a professional athlete.  US Legal, Inc. defines the professional athlete as

An individual who is employed as an athlete by a team that is a member of an association of 6 or more professional sports teams whose total combined revenues exceed $10 million per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage or any minor league team that is affiliated with such an association.[10]

From this definition we grasp the idea that a professional athlete must be employed. Other definitions offered state that a professional athlete is “one who receives any kind of payment, directly, or indirectly, for athletics participation”.[11] So in sum we define professional athletes as those who are employed and receive payment for their participation in athletics.

It is also important to keep in mind that because they are employees fulfilling job functions, professional athletes are entitled to a group of rights available to all employees pursuant to  employment and labor law.[12] These are, of course, rights that “amateur” athletes who are not considered employees would not enjoy. Thus, we emphasize the need to first classify the type of athletes before engaging in a discussion of their rights.

It is clear from the foregoing that the classifications of athletes may change the sort of rights they may be entitled to. As such, before we can discuss athletes’ rights we must first determine which set of athletes we are referring to. After classifying athletes, the next step would be to discover the sources each set of rights derive from. For this determination we might look to the bylaws of the governing bodies of these sports, the statutes put into place to protect adolescents and employees, or even the case law which address rights granted to athletes by way of their classification as an amateur or a professional. The next article in this series will further address what is meant by the term rights as we address each classification of athlete. Once again, stay tuned for part 3 in this series …