Considerations for Clubs: Professional Footballers Under the Age of 16
A paramount concern among professional sports leagues, regardless of the sport or gender, is the player pathway to professional. This blog focuses on soccer (Football). In this domain, Clubs take on different strategies to obtain talent. Some clubs opt for recruitment from other domestic or international clubs. Others choose to invest in the “homegrown” talent- the players who grew up training and who reach the level of playing professionally. These “homegrown focused” clubs either utilize these players on their own pitch, or may transfer them to another club. The latter can be a source of income for the club. (Check out this Blog on Training Compensation.)
In the U.S., we have seen some impressive players under the age of 15 play professional soccer. (See: Freddy Adu, Cavan Sullivan (of the Philadelphia Union), McKenna Whitham (of Gotham FC)). This blog focuses on professional football clubs hiring talent under the age of 16. Even more, this blog focuses on the U.S. Federal Law on Child Labor. (NOTE: Federal U.S. law provides the floor (baseline) for employers. States can pass laws that are more restrictive than the federal law.). Prudent clubs and leagues will evaluate the state specific laws of their place of business, in addition to the federal law.
Let’s begin with Child Labor Law Basics….
FEDERAL LAW BACKGROUND: “OPPRESSIVE CHILD LABOR”
The Fair Labor Standards Act (“FLSA”) prohibits Oppressive Child Labor. Under the FLSA, Oppressive Child Labor takes on a different definition depending on the age of the employee (child). The definition depends on whether the child is under the age of 16. Let’s take a look at each definition.
16 Years Old to 18 Years Old.
Under the FLSA, it is considered Oppressive Child Labor for any employee between the ages of 16 and 18 to be:
Employed by an employer in any occupation which the Department of Labor (DOL) deems hazardous for the employment of minors.
NOTE: The DOL issued regulations that identify the hazardous occupations. Again, this blog focuses on players under the age of 16.
14 Years Old to 16 Years Old.
The FLSA indicates that it is Oppressive Child Labor whenever a Minor works in any occupation unless:
The occupation is specified in the regulations as permitted to be performed by Minors age 14 or 15.
The Occupation is performed in accordance with time restrictions outlined in the regulations, so as to no interfere with the Minor’s schooling and health/well-being.
Under 14 Years Old.
Minors age 14 or younger are not permitted to perform nonagricultural work.
NOTE: It follows that minors under the age of 14 cannot be working in the United States.
EXTRA NOTE: Now, Gotham FC’s Mckenna Whitham played her first professional match when she was 13 yrs old. She played her first professional match in the Women’s Cup in Colombia. This is permissible under the FLSA, because she did not perform the work in the U.S. The FLSA does not apply to “any employee whose services during the workweek are performed in a workplace within a foreign country…” It follows that Mckenna played the match in a foreign country, therefore the FLSA prohibitions do not apply.
EXTRA EXTRA NOTE: You will see that unless there is a change in the Federal Law, there will not be a professional athlete under the age of 14 working in the United States.
As you can see, Minors under the Age of 14 cannot work. Minors ages 14 and 15 can work, but under certain conditions and in certain occupations. Minors ages 16 and 17 also can work, but again in certain occupations.
Let’s dig deeper into Minors ages 14 and 15, and what Clubs and Leagues must consider when players this age turn professional.
HOW CAN CLUBS EMPLOY MINORS AGES 14 OR 15?
So how can clubs employ that 14 year old phenom as the next star of their Club? Let’s back up and remember that the FLSA certainly defines “Oppressive Child Labor.” With that being said, the statute and regulations provide for exemptions from Oppressive Labor, which may allow some clubs (depending on state laws) to lawfully have 14 year old soccer stars on their pitch and getting paid. (REMEMBER: Clubs must look to the states for guidance on their local laws.)
Let’s walk through the federal statue and related regulations and evaluate how a Club could explore employing a 14/15 Minor. Below is an overview of the inquiry, which is explored in greater detail in the next section.
STEP #1: Review Permissible Occupations for 14/15 Minors Under the FLSA.
Answer: No.
STEP #2: If Professional Sport (Soccer) is a Permissible Occupation, then Ensure the Time Restrictions are Followed.
Answer: It not a permissible occupation, therefore the time restrictions do not apply.
STEP #3: If Professional Sport (Soccer) is Not a Permissible Occupation, then is there an Exemption that Applies? Explore Possible Exemptions: (1) Work Experience and Career Exploration Program (WECEB); or (2) Work-Study Program.
Answer: We must explore exemptions. This is a fact-based inquiry.
STEP #1- PERMISSIBLE OCCUPATIONS UNDER THE FLSA FOR 14/15 MINORS
The Federal Regulations set out the permitted occupations for 14/15 minors. The list of permissible occupations is exhaustive. In fact, the Department of Labor emphasizes this in Fact Sheet #43 by stating “WHAT IS NOT PERMITTED IS PROHIBITED.” Below is a list of the occupations permitted for Minors ages 14 or 15. Notice that professional sports (soccer) is not included in the list.
Office and Clerical Work (including operation of office machines).
Work of an intellectual or artistically creative nature such as (but not limited to): writing software, teaching/performing as a tutor, peer counselor, teacher’s assistant, singing, playing a musical instrument, drawing.
NOTE: Soccer is most likely not considered an intellectual or artistically creative nature. In fact, the federal regulations provide guidance by stating that a “recognized field of artistic or creative endeavor” is not an occupation that is “routine mental, manual, mechanical or physical work.” The regulations go further that in order to be in a “recognized field” this includes fields such as “music, writing, acting or the graphic arts.” While this list is non-exhaustive, it does not appear that athletics would be included.
Cooking with electric or gas grills which not does involve cooking.
Cashiering, selling, modeling, art work, work in advertising departments, window trimming, and comparative shopping.
Price marking and tagging by hand or machine, assembling orders, packing and shelving.
Bagging and carrying out customers’ orders.
Errand and delivery work by foot, bicycle, and public transportation.
Clean up work, including the use of vacuum cleaners and floor waxers, and the maintenance of grounds.
Kitchen work and other work involved in preparing and serving food and beverages, including operating machines and devices used in performing such work.
Cleaning vegetables and fruits.
Loading/unloading hand tools and personal protective equipment (that will be used on the job) from a motor vehicle.
As you can see, professional sports (soccer) is not identified as a permissible occupation. Since playing soccer is not a permissible occupation for a 14/15 Minor, how can a Club employ a player that is 14 or 15 years old? Let’s keep moving through the analysis.
STEP #2- TIME RESTRICTIONS FOR PERMISSIBLE OCCUPATIONS FOR 14/15 MINORS
As explained above, since professional football is not a permissible occupation for 14/15 Minors, the time restrictions do not apply. Let’s move to Step #3.
STEP #3- EXEMPTIONS
The regulations set out two different types of exemptions: (1) Work Experience and Career Exploration Program (WECEP), and (2) Work-Study Program. Clubs can look to these exemptions to lawfully employ a 14/15 Minor. It must be noted that the Work-Study programs are inapplicable to the professional sport realm. This exemption only applies to the Permissible Occupations identified above.
That leaves us with the only exemption left…the WECEP. As described below, this is the skeleton for an academy. Clubs use the school-academy model as it can be a viable way to employ 14/15 Minors.
EXEMPTION #1: WORK EXPERIENCE AND CAREER EXPLORATION PROGRAM
The regulations provide guidelines for 14/15 Minors enrolled in an WECEP. A WECEP is a “school-supervised and school-administered work-experience and career exploration program.” This is why many Clubs take on the “academy model.” When Clubs explore building an academy, they must take into account the federal requirements for a WECEP. A federally compliant WECEP must satisfy the following requirements:
State Education Agency Approval. The Club must ensure that the school-supervised and school-administered work-experience and career exploration program meets the standards of the state educational agency.
DOL Approval. Once approved, the State Agency files an application with eh Department of Labor.
Special Variation Request. As discussed above, professional football is not a permissible occupation. It follows that a request for a Special Variation must be made to the DOL. The Agency has discretion to review and grant such requests, on a case-by-case basis. These requests are granted when the applicant demonstrates the following:
Safety. Activity (Football) will be performed under adequate supervision and training. NOTE: This includes safety precautions.
Schooling/Health. The terms and conditions of the proposed employment will not interfere with the health or well-being or schooling of the 14/15 Minor enrolled.
Hours. The are two sections (read them here and here) in the federal regulations that relate to hour restrictions of the employment. Briefly, the regulations put restrictions for 14/15 Minors and how many hours they can “work” in a week while “school is in session” and “school hours.” The regulations provide definitions for these phrases. It is crucial that Clubs running WECEP academies have a full understanding of these definitions and restrictions.
FINAL THOUGHTS
As Clubs explore structures to develop and employ young talent, an understanding of the applicable laws relating to Child Labor is crucial. Clubs must ensure adherence to not only the federal child labor laws, but also the applicable state laws.