NCAA Request for Athlete ‘Special Status’ Could Backfire in Court
In last Tuesday’s hearing before the U.S. Senate Judiciary Committee, NCAA president Charlie Baker asked that Congress “codify current regulatory guidance into law by granting student-athletes special status that would affirm they are not employees.”
There’s a risk for the NCAA in making this request: Why would Congress craft a new, “special status” for college athletes as non-employees if, as the NCAA has argued in court, college athletes aren’t employees under existing law?
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No special status would be needed—unless the athletes are, in fact, employees.
The situation highlights the logical perils of claiming current law supports one position while simultaneously claiming current law must be amended to achieve that same position.
It’s a two-step dance that might cause the NCAA to trip.
Expect attorneys representing college athletes to cite Baker’s testimony in written motions and during oral depositions of witnesses (potentially including Baker), conference executives and athletic directors. The NCAA, those attorneys will maintain, has now effectively conceded college athletes meet employment criteria.
Those criteria include performing services for a business, with college athletes playing sports the university uses to generate ticket sales and TV, apparel and other licensing revenue; enhance marketing efforts; fundraise from boosters and alumni; and recruit high school students who want to attend a college with good sports teams. Degree of control is also relevant—colleges, attorney advocates stress, require that athletes spend their time to advance a team’s objectives and dictate their travel, including lengthy road trips in the middle of academic terms.
The NCAA argues in Johnson v. NCAA and in NLRB petitions involving Dartmouth and USC that these athletes do not qualify as employees under the Fair Labor Standards Act or the National Labor Relations Act. The NCAA insists the athletes are students who, as part of their education, play an amateur sport—albeit, a sport that is part of a booming college sports industry in which television networks pay billions of dollars to broadcast games and in which some coaches earn millions of dollars.
Some college athletes emphasize that being both a student at a college and an employee of that same college is an arrangement colleges have long embraced. It’s not either/or, they say.
In Johnson, the athletes argue it is incongruous for their work-study classmates, some of whom are on scholarship, to be paid to collect game tickets and sell hot dogs while athletes playing in those games aren’t paid. Work-study students are hourly employees and perform labor according to a set schedule—not dissimilar to athletes subject to NCAA-mandated timesheets.
In the Dartmouth petition, the men’s basketball team notes that classmates who work in the dining hall are employees and members of a union. Their union recently negotiated a $21 per hour wage, nearly three times the federal and New Hampshire minimum wage of $7.25 per hour.
Athletes and their advocates are likely also to dispute legal and policy recommendations that fall short of recognizing college athletes as employees.
For example, Notre Dame athletic director Jack Swarbrick, who also testified in the Senate hearing, told Yahoo Sports that the NCAA and/or conferences should be able to collectively bargain with college athletes without those athletes being deemed employees of their schools, conference or the NCAA.
Swarbrick, a longtime attorney and former partner at Baker & Daniels, acknowledged what he proposes is not possible under U.S. labor law, which requires that union members be employees (among other criteria). His plan would necessitate amending federal law to create an exemption.
College athletes might insist that while Swarbrick’s intentions are commendable—Swarbrick wants them to have a direct voice in how they’re treated—there’s a simpler path. The NCAA and its members could recognize all, or at least some, college athletes as employees (the latter being a position I’ve advocated in law review articles, New Amateurism and The Collegiate Employee-Athlete). Those athletes could then decide if they wish to form unions and bargain.
One point is clear: The NCAA and its member colleges are running out of time before a massive shift occurs and a court deems potentially hundreds of thousands of college athletes employees. The NCAA banking on Congress—which doesn’t even have a Speaker of the House, is as politically divided as ever and is entering a contentious presidential election year—doesn’t seem like a wise bet. The NCAA should instead step up and change its rules.
