Part I

By Jill Pilgrim, Esq. and Aisha Mckinney[1]

 Lawsuits involving athletes have dominated the sports-media reporting landscape over the past year.  The major focus in many of these news reports and commentaries is the theme of “Athletes’ Rights.”  From arguments centering on the right of an athlete to be compensated for the use of his or her likeness, to the discussion of the right of an athlete to receive superior medical treatment; regardless of the subject matter category, there is a prevailing notion that athletes are entitled to some special level of rights that regular citizens and the average Joe never experience.  Few of the sports media pundits, bloggers, or commentators discuss the source of these “so-called” rights of athletes.  Are these the inherent rights that everyone else in society is presumably entitled to? Or, are these rights, of gifted people who play games that others like to watch, a special class of rights? This article is the beginning of a series that will present a different perspective of what it means to be an athlete and the rights that are associated with this status.

WHAT IS AN ATHLETE?

Before we can discuss what rights are or are not inherent to being an athlete, we must first narrow the definition of athlete since the term can refer to a wide range of individuals engaged in quite different athletic endeavors and in very disparate contests.  While the premise of this article is that it is unwise to offer a generalized statement that purports to apply to all athletes as one group–except possibly to say that each athlete enjoys the sport she or he is engaged in–but even that statement may be inaccurate.

Are we speaking of amateur or professional athletes, team or individual athletes, paid or unpaid athletes, adult or minor athletes, high school or college athletes (with or without athletic eligibility)?  Right off the bat, the issues become clear.  There are so many different categories of athletes, and the so-called rights, vary tremendously from category to category. The differences usually boil down to the associated sport and the classification of the athlete as either an amateur or a professional. One relevant example is the right of professional athletes to receive compensation[2] when amateur athletes generally do not or cannot.[3]  So for the purposes of discussing athletes’ rights, if any, it is important to first distinguish what category of athlete we are discussing.

Meriam Webster Dictionary has the expected, generic definition of an athlete–describing a person who is trained or skilled in exercises, sports, or games requiring physical strength, agility, or stamina.[4] For purposes of effectively discussing athletes’ rights, it is useful to classify athletes as adolescent, adult, amateur, or professional.

Adolescent Athlete

Andrew, 13, developed his skill set in the backyard before hitting the organized baseball diamond.

In America, an adolescent’s early exposure to sports is usually through playing with friends in the neighborhood or during family outings to the park, beach or playground.  Thus, a young child might accompany her mother or father to a tennis match, a basketball pick-up game, or a golf outing, which was likely preceded by playing Nintendo Wii tennis, shooting hoops in the driveway, or putting at the local mini-golf. The athletes’ progression, from a sports participation standpoint, is organized recreational youth leagues, conceivably followed by interscholastic sports.

This series of articles will generally mention adolescent or youth athletes, which means children under the age of 18 who are considered amateurs, unless otherwise indicated. Among this grouping are the elite adolescent athletes who participate in Olympic activities and individual professional sports like tennis. For this class of athletes, there are a special set of legal interests that must be guarded due to these athletes not having the legal capacity to advocate for themselves.  Some of the necessary protected interests include equal opportunity to participate, safety, and the avoidance of exploitation. [5] In protecting the interests of this class of youth athletes, one must distinguish between the obligations and decision-making authority of parents and society (as exemplified by the legal system) from the appropriate role and authority of the organizations that regulate a sport and its competition.

Adult Athlete

Adult athletes are considered to be of a legal maturity and capacity to advocate for themselves.  So in these instances, they may be entitled to more or less rights depending on the amount of bargaining power these athletes have, individually or as a group, in influencing the organization that governs their sport’s participation.  Typically, we associate the adult athlete with professional sports.  Of course, this narrow thinking does not give due recognition to that class of adult athletes who also compete in amateur competitions, such as those governed by the National Collegiate Athletic Association (“NCAA”) and the millions of other adults engaged in recreational sports activities.  Adult athletes are presumed to be capable of negotiating their rights, hiring someone to advocate on their behalf, or having the ability to take their concerns before a competent independent decision-maker to determine if they are entitled to such rights.

So now we know that age does matter in the discussion of rights and categories of athletes, the next article in this series will clarify the distinction between amateur and professional athletes, all with the goal of eventually identifying what, if any, rights different classes of athletes might be entitled to.  Stay tuned . . .