The pressure on the NCAA increases.
The governing body that oversees amateur sports faces legal threats (some overlapping, some contradictory) to its status quo on several fronts. On Monday, the National Labor Relations Board told players on the Dartmouth men's basketball team that they fit the definition of a university employee. The next day, a federal judge wrote that Tennessee's attorney general “is likely to succeed on the merits” of a claim that the NCAA cannot legally punish players or their schools for negotiating name, image deals and similarities during their recruiting process. The NCAA is already fighting existing court cases and pressuring Congress to adopt national rules, and while there's no clear, single knockout on the horizon, it's clear that the walls are getting closer to what's left of amateurism in university sports.
There's a lot to keep track of, so here's a crib sheet to help you.
The Latest on NLRB Cases
The federal agency that oversees the collective bargaining rights of employees of private American companies is in the middle of two cases involving college athletes. In New Hampshire, Dartmouth basketball players cleared the first major hurdle to joining a union. In Los Angeles, the NLRB will resume a similar trial later this month on behalf of USC football and basketball players.
Dartmouth administrators said they plan to appeal this week's decision to the NLRB's national board, a process that could take more than a year to resolve. In 2014, an NLRB regional director ruled that Northwestern football players were employees, but an appeal by the school ultimately derailed the players' effort to unionize.
Why could this time be more successful for players? The legal and public perception of college athletes has certainly changed (more on this below). But more importantly, the board rejected a decision in the Northwestern case in large part because Northwestern's Big Ten peers were public institutions, which have different laws for collective bargaining outside the purview of the NLRB. The board did not want to create an unfair market in which only one team had players they could negotiate as employees. Dartmouth players in the private school Ivy League would not face the same problem.
Dartmouth players said in a statement this week that they intend to form a players association for all Ivy League players, and they hope athletes across the country “feel inspired to do the same.”
In Los Angeles, plaintiffs are trying a new strategy to avoid differences between public and private schools. They argue that athletes are not only employees of their school, but also of their conference and the NCAA, both of which are private institutions under the purview of the NLRB. If successful, their claim could set a more impactful precedent for the wealthiest conferences, all of which are primarily made up of public schools.
“[Dartmouth’s ruling] It definitely bodes well for USC's case. And it's not a big surprise,” said Ramogi Huma, founder of an athlete advocacy group that brought USC's case. “USC's case is even stronger because they actually get scholarships. “We hope to win this.”
Huma, who was also a key supporter in Northwestern's union effort a decade ago, said that even if the NLRB decides that only USC (and not the NCAA or its conference) is an employer, public-private differences may no longer exist. be an agreement. Automatic switch.
“We're in a completely different world than 2014,” he told ESPN. “That ruling emphasized the need to have common rules when it comes to benefits for players. But we are in the NIL era where the laws are different from state to state and the rules are different from school to school. And it is clear that That hasn't caused college sports to collapse.”
Antitrust arguments
No corner of the court system has done more to erode the NCAA's amateurism rules than antitrust lawsuits. After defeats in important paradigm shift cases, such as O'Bannon and alstonwhich established that the Supreme Court no longer considered college sports to be completely immune from rules regulating other industries, the NCAA is currently defending four different antitrust cases directly related to athlete compensation (in addition to another case attacking its rules of transfer).
Some — House vs. NCAA and Hubbard vs. the NCAA – are primarily financial threats to the future of the NCAA, claiming that former athletes deserve some compensation for opportunities they were denied before NIL and changes to academic pay rules. The House case, which is much further along in the legal process than Hubbard's, is scheduled to go to trial in January 2025. If the plaintiffs are successful, it could cost the NCAA and its schools billions of dollars. .
That looming, devastating price could end up being the leverage athletes need to force collective bargaining or an employment model. If the NCAA wants to settle the case before it is ordered to pay billions, it would likely have to accept some new business model in the process.
Two other antitrust cases, including one filed last week by the attorneys general of Tennessee and Virginia, take aim at what remains of the NCAA's pay restrictions. One case, in its early stages, led by Duke football player Dewayne Carter, argues that it is illegal for the NCAA to impose restrictions on how schools compensate their athletes.
In the other case, Tennessee and Virginia argue that NCAA rules prohibiting the use of NIL agreements as a recruiting incentive are unfairly limiting athletes' full potential to earn money from boosters. The initial complaint said the NCAA's current set of NIL rules “prohibits prospective collegiate and collective athletes from having open and transparent interactions related to NIL compensation and therefore denies these athletes the ability to effectively negotiate their rights.” NIL at the time when they could best do it. maximize the value of those rights.”
A judge denied a request earlier this week to remove the NCAA's NIL restrictions while the case is pending. But in his denial, the judge wrote that he saw sufficient evidence in initial claims that the NCAA's current rules are “analogous to an outright ban on competitive bidding, which the Supreme Court found anticompetitive 'on its face.'” “.
Fair Labor Standards Act Test
A separate battle is underway in Philadelphia to declare college athletes employees. Former Villanova football player Trey Johnson has filed a lawsuit alleging that college athletes meet the definition of employees under a separate part of US law: the Fair Labor Standards Act (FLSA).
Unlike NLRB cases, Johnson vs. NCAA It does not address the right to form a union, but maintains that athletes should receive certain rights as employees, including an hourly wage.
The case has been awaiting a ruling from the Third Circuit Court of Appeals for almost a year following a hearing last February. The NCAA is seeking to have the case dismissed based on precedent established in previous cases, when the association successfully argued that the unique nature of college sports makes it unnecessary to apply the FLSA's usual tests to determine employee status.
The pending decision is just an interim step in a case that will likely take months or years to reach a conclusion. However, if this appeals court rules in favor of the athletes, it could indicate that some type of employee status is inevitable, adding another pressure point for the NCAA or some of its schools to make major changes before the case reaches an official conclusion.
Changes in state law
State lawmakers are also undermining the association's ability to enforce NIL-related rules.
Six states passed laws in 2023 that somehow prohibit the NCAA from penalizing athletes or schools for violations of NIL rules. Most of those laws also make it easier for schools to help athletes find or comply with NIL agreements. The NCAA and its member schools initially tried to avoid helping athletes find deals directly because of concerns that courts would interpret the move as a creative solution to employing players.
At least five other states are taking steps to implement similar laws this year, including Oregon, where a new bill was introduced earlier this week. Max Forer, a former Oregon football player who now heads the sports division of the Miller Nash law firm, testified in favor of the bill on Tuesday. He told ESPN that changes to state laws, pushed by schools that want to do more to help their athletes, may end up having as much impact as federal cases in forcing the NCAA to change its current system.
“The evolution of state laws is eroding the NCAA's ability to penalize or enforce their rules the way they would like,” Forer said. “They can't use their power to punish schools that are trying to help athletes. State law is the piece the NCAA never really thought about.”
Both the NCAA's national office and individual conferences and schools have tried to defend themselves against state laws by asking Congress for a uniform federal law that would reaffirm their ability to enforce the rules and state that athletes should not be employees of their school. The NCAA says many of its schools can't afford to pay athletes as employees, and that employee status could lead to a host of new complications (workers' compensation, Title IX regulations and international student visas, to name some) for their athletic departments. .
While many college sports leaders believe Congress remains their best hope for a manageable path forward, the association has made little tangible progress after several years of lobbying for federal legislation. The result is a slow, high-stakes race for the NCAA to convince Congress to act before the mounting pressure of all its legal problems forces a change.
