On September 27th, General Counsel at the National Labor Relations Board (NLRB) released a memo asserting that college athletes at private universities should be classified as employees under federal labor law and allowed to collectively bargain. To enforce this, the NLRB intends to pursue legal action against private universities that misclassify colleges athletes as mere student-athletes. The NLRB’s memo follows this year’s wave of legal challenges to the NCAA’s classification of college athletes. From NCAA v. Alston to “name, image, and likeness” (NIL) policy changes, the traditional stance on college athletics and labor has significantly changed for good.
In June 2021, the Supreme Court unanimously held in NCAA v. Alston that it was a violation of antitrust law for college sports to prohibit education-related payments and benefits like scholarships for graduate school and paid post-eligibility internships. The court rejected the NCAA’s defense that they were not subject to antitrust law based on the amateur status of their athletes. The court unquestionably held that the NCAA is a profit-making enterprise. But the court did not take this case as an opportunity to rule more broadly on the employment status of athletes. However in his concurring opinion, Justice Kavanaugh indicated further interest in this issue, writing, “nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”
Following the unanimous court’s decision, several states planned to enact legislation that would allow college athletes to profit off their NIL on July 1, 2021. Pressured by these approaching laws, the NCAA preemptively announced approval of a new policy prohibiting penalty to all Division I athletes who choose to profit off their NIL. As a result, college athletes will be able to use state legislation or the NCAA waiver to profit off their NIL, such as through endorsements, sponsorships, personal appearances, and autograph signings.
This is a monumental change for college athletes. Prior, top athletes who garnered name brand recognition often had to choose whether to continue their collegiate career and education or to “go pro” to pursue lucrative opportunities. Allowing athletes to profit from NIL effectively eliminates this problem for high-profile athletes. Yet, many would argue that this is not enough.
The change in NIL policy does not have an effect on larger systemic problems within college sports. College athletics is a billion-dollar industry and the athletes who are generating this enormous wealth are not allowed to share in it. The traditional argument that they are being compensated through their education no longer holds up. Most college athletes are told that school comes second to sports – they are getting a scholarship to play sports, not to go to school. And this can have devasting effects on those who do not end up playing professionally. While graduation rates in 2018 for all undergrade students rests at 76%, the graduation rate for black male college athletes sits at 55%. But it’s not only the low, disproportionate graduation rates at issue. In the recent HBO documentary Level Playing Field, Professor Ekow Yankah at Cardozo School of Law called the quality of athlete’s education “shallow and empty . . . to make them available for the next football or basketball game.” Regardless of the division or sport, when college athletes have such time-consuming commitments to their sports, they do not have the time nor ability to fully participate in their education.
Additionally, without employment status, athletes are not guaranteed sports-related medical coverage, nor are they receiving adequate long-term medical care. Many injuries that college athletes sustain worsen or do not appear until after they’ve completed their athletic careers. According to Level Playing Field, the injury rate among Division 1 athletes across all sports is 66%, and 50% go on to suffer chronic injury. Long-term medical care of these injuries is another burden that college athletes must shoulder on their own.
The NLRB memo shows promise in addressing these problems. Jennifer Abruzzo, the newly appointed general counsel, argues that under common law rules, scholarship college athletes, specifically those at private universities, perform the kinds of activities that any employee would do, and that consideration via payment is a strong indicator of employee status. Further, the NCAA controls players’ terms and conditions of employment through a specific number of practices, including competition hours, minimum GPA, and restrictions on gifts and benefits. The compliance and enforcement of these policies and rules again demonstrate the level of control that the NCAA exercises over these athletes. Abruzzo declares the NLRB’s intention to pursue appropriate cases where an employer misclassifies employees as student-athletes.
Employment status is the next step in ensuring that college athletes are fairly compensated and protected. As Abruzzo noted, college athletes should be able to collectively bargain over the terms and conditions of their work without fear of retaliation. The NCAA profits handsomely from the work of their athletes. Now it’s time to pay them.