Proper Status for Classifying College Athletes: Employees? Or …?

The status of college athletes at institutions is a current hot-button topic in college sports. Specifically, the debate boils down to whether college athletes should be treated as employees of their respective institutions or not. Interestingly, recent comments from NCAA President Mark Emmert indicate that there may be another classification-type for college athletes. However, the introduction of this concept may prove to be just a bit late.   

Mark Emmert’s Comments

On September 9, 2022, Kristi Dosh, founder of the Business of College Sports and professor at the University of Florida’s Sport Management and Public Relations Departments, sat down and interviewed NCAA President Mark Emmert.[1] During the course of the interview, Mark Emmert was asked various questions regarding player compensation. Id. Emmert’s comments are illustrative as the tension points for whether college athletes are considered employees of their institutions. Id.

Emmert’s Concerns with Classifying College Athletes as “Employees”

Emmert explained the difficulties that would ensue if college athletes are identified as employees of institutions. Id. For example, Emmert noted that employment law does not differentiate between whether a sport is a high-revenue generating sport or whether it is a low-revenue generating sport, suggesting that all athletes would have to be paid similar or the exact same amounts, despite playing for programs that generate substantially different amounts of revenue. Id. Moreover, as employees, Emmert explained that the traditional recruiting process would be virtually eliminated because, as employees, college athletes would have to be hired and fired by the university. Id. Finally, Emmert appeared to be concerned with the potential disappearance of Title IX in college sports if college athletes are identified as employees. Id.

“Employee” Alternative – “College Ambassador”

Despite the issues mentioned by Emmert regarding college athletes as university employees, Emmert mentioned the concept of college athletes being paid as brand ambassadors of the university. Id.

In justifying the concept, Emmert made the following comment:

“I’m really serious about this brand ambassador model I’m talking about. I think that especially with the size of media contracts that are being created right now, there needs to be recognition of the brand building value, for the school itself, of the athletes. And so, finding a way to provide money to athletes, not as employees but as these basically brand ambassadors, that are that are gauged to the marketing power of individual sports–whether we like it or not football is, especially here in the SEC, football is dominant, and, basketball and baseball and softball, some others follow behind it, depending on the school. You can gauge that. I really think a model like that would be very successful and very well received by athletes. Universities may not love it, but I think it works. I think it could work really well.” Id.

Furthermore, Emmert noted that conferences would be the ones to determine whether there should be any caps on brand ambassador compensation, citing the likelihood of fewer issues with antitrust law than if the NCAA enforced such caps. Id.

Specifically, Emmert made the following comment:

“I would like to see some caps be placed around what I was talking about this brand ambassador model, which could be done at the conference level without as much antitrust risk. But doing it at a national level becomes impossible. So you could say, all right in the SEC, you’ve got wealthier schools than others. Mississippi State’s budget, Vanderbilt’s budget, isn’t like Florida’s. Florida’s isn’t like Alabama’s, we all understand that. But you could say in the SEC, you can give NIL brand ambassador payments to the athletes on the football team, let’s say. Could be any sport, but let’s say football. But it can’t be more than $2 million. I made that number up. But whatever the amount is, X amount of money anywhere in the SEC. So that would create some parity within the SEC.

“If the Big 10 said, ‘Well, we’re gonna do 3 million,’ then the SEC could decide whether or not it wanted to go up or down or whatever. But the competition could be managed then at a at a more local level, and that reduces the antitrust violation. That’s what I that’s what I think is the only sensible answer here.” Id.

College Athletes as College Ambassadors appears to make sense, however, external pressures may soon prove to be decisive in the issue of whether college athletes should be treated as employees. Photo Credit.

Perhaps Too Little Too Late…

Johnson v. NCAA

Although Emmert’s comments regarding the concept of college brand ambassador appears to be promising, the legal pressure mounting on the issue of whether college athletes are employees of their institutions may soon prove to be decisive.

Following the dismantling of the “amateur” concept by the Supreme Court in NCAA v. Alston in June of 2021, courts now have to determine whether college athletes are true employees of their institutions or not.

Right in the forefront of that issue is the anticipated release of the Third Circuit’s decision in Johnson v. NCAA.[2] There, various college athletes from Pennsylvania, New York, and Connecticut sued the NCAA under the Fair Labor Standards Act, as well as various minimum wage statutes, claiming that they are entitled to back wages and damages for unjust enrichment the institutions received at their expense. Id. After initially surviving a motion to dismiss pre-Alston, the Third Circuit’s decision in Johnson v. NCAA will be the first major decision issued under the Alston framework.

National College Players Association Complaint

In addition to the anticipated release of the Johnson v. NCAA decision in the 3rd Circuit, the pressure continues to mount elsewhere to determine whether college athletes are employees of their institutions.

For example, this past March, the National College Players Association (“NCPA”) filed a complaint with the Department of Education, alleging that all 350 NCAA Division I schools are violating Black students’ civil rights by colluding to cap compensation.[3] Specifically, the nine-page complaint cites the millions of dollars that college basketball and football players are missing out on because of the NCAA’s compensation limits. Id. For example, the complaint estimates that women’s basketball players are each being denied $24,000 per year; men’s basketball players $164,000 per year; and football players $185,000 per year. Id.

The Department of Education determined that the complaint did not fall under its jurisdiction. Id. Therefore, Department of Education Office of Civil Rights Chief Attorney Anamaria Loya sent a letter[4] this past week to NCAA institutions, explaining that the complaint would be referred to the U.S. Equal Employment Opportunity Commission (“EEOC”).[5] Now, the EEOC is expected to begin its process with an “aggressive” investigation into the complaint, potentially providing another avenue for the determination of employment status for college athletes. Id.  

NLRB Revised Position on “Student-Athlete”

In September of 2021, NLRB General Counsel Jennifer Abruzzo issued a memo that provided updated guidance regarding the board’s position that certain Players at Academic Institutions are considered employees under the National Labor Relations Act, and accordingly, shall be afforded statutory protections.[6] Moreover, the memo further advised that Ms. Abruzzo will allege that misclassifying employees as “student-athletes” and then leading them to believe that they are not entitled to the NLRA’s protection has a chilling effect on Section 7 activity and is an independent violation of Section 8(a)(1) of the NLRA. Id.

For more details on the abrupt disassociation of the phrase “student athlete” by the NLRB, read Professor Nellie Drew’s post here from the Fall of 2021.

Conclusion

In sum, the concept of school ambassador appears on its face as a genuine response to the issue of compensating college athletes without trying to navigate the pitfalls of categorizing them as employees. However, the reality is that it just may be too little too late for the concept of school ambassadors, especially if courts and government entities like the EEOC and NLRB determine that college athletes are truly employees of their institutions.


[1] https://businessofcollegesports.com/name-image-likeness/the-future-of-nil-and-compensating-athletes-with-ncaa-president-mark-emmert/

[2] https://ublawsportsforum.com/2022/02/08/are-student-athletes-employees-the-3rd-circuit-will-decide/

[3] https://www.si.com/college/2022/09/15/ncaa-compensation-complaint-next-step-student-athlete-employees

[4] https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:7a96b94a-752f-39fd-8d6b-6b7aae73ebfd#pageNum=1

[5] https://www.si.com/college/2022/09/15/ncaa-compensation-complaint-next-step-student-athlete-employees

[6] https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status-of

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President of the Buffalo Sports and Entertainment Law Society. Before law school, I coached college football at the University of Rochester for five seasons. I am excited to take these experiences, along with a legal education to make an impact on the ever-evolving landscape of college athletics. Thanks for reading our posts!

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