The NCAA, functioning as the governing body for college sports, has advanced the concept of the student-athlete in promoting amateur collegiate sports. For decades, the NCAA and its member colleges have increasingly monetized collegiate sports, generating revenue in 2022 estimated at $13.6 billion.[1] And for decades, the NCAA designation of student-athlete has been questioned.[2] Two recent cases out of Dartmouth and USC have been truly bringing the question of whether student athletes should be classified as employees to the forefront.[3]
The NCAA has been steadily losing the power that it once possessed. The NCAA once controlled exclusive broadcasting contracts with restrictions on the total number of college football games that could be shown and limited the number of games of any one school that could be shown. The Supreme Court held these restrictions were in violation of the Sherman Act in 1984.[4]
The NCAA has traditionally had strict limits on the amount of financial grants and other compensation that an athlete can receive to remain eligible to be a student-athlete. These regulations prohibited both Name, Image, and Likeness (NIL) deals and pay-to-play compensation. But, just days after the Supreme Court issued its 2021 decision in NCAA v. Alston, the NCAA issued new rules allowing players to make NIL deals across the nation.[5]
Regarding pay-to-play, the NCAA has been active in supporting its member schools in fighting against the classification of athletes as employees. This year, the Third Circuit ruled that Division I athletes with amateur status can bring a claim against the NCAA to determine if they should be classified as employees under the Fair Labor Standards Act.[6] The NCAA was identified as a joint employer in this case based on its strict enforcement of rules that colleges are required to follow. Similarly, the NCAA is supporting Dartmouth in trying to prevent their men’s basketball team from unionizing, although the NRLB regional director already has ruled that the players could unionize.[7] The basketball team has now filed an unfair labor practice charge against Dartmouth for refusing to bargain with them that will requiring court intervention.[8]
The history of the NCAA losing control over its amateur collegiate sports domain seems destined to eventually repeat itself when athletes win the right to be compensated to play through a drawn-out legal battle.
Michael McCann proposes one solution of the NCAA embracing college athletes as employees by collectively bargaining new rules with the conferences and colleges that would then be exempt from antitrust scrutiny.[9] If the NCAA embraces an employee-athlete model, there is still a chance for the organization to define a new path forward now and minimize the future legal battles. Ongoing challenges will include athletes frequently switching schools to get higher compensation and potentially changing bargaining units. The entire union membership will turn over every 4-5 years preventing long-term stability. There could also be different bargaining parameters for students at state institutions, as compared to private schools.
Another possible path is to focus on the athletes. The NCAA includes as a priority to “Lead research and promote innovation that improves health, safety and performance.”[10] The NCAA could withdraw from its role as coordinator of collegiate sports and refocus on being the organization that best improves the health, safety, and compensation of collegiate athletes. This version of the NCAA could also prioritize the ‘student’ portion of student-athlete, ensuring the educational mission of college sports does not become overshadowed by athletic compensation. This type of shift would reduce the future legal exposure of the NCAA as it would no longer be considered a co-employer.
The NCAA’s devolution over the past several years is accelerating. This is due in large part to the NCAA’s failure to recognize and address significant issues as they arose. The NCAA now needs to commit to a reformed role in a different world of collegiate athletics in order to remain relevant.
[1] https://moronesanalytics.com/following-the-money-in-college-sports/
[2] Robert A. McCormick & Amy Christian McCormick, The Myth of the Student-Athlete: The College Athlete as Employee, 81 Wash. L. Rev. 71 (2006) (https://history.msu.edu/hst329/files/2015/05/The-Myth-of-the-Student-Athlete.pdf).
[3] https://ublawsportsforum.com/2024/08/28/employee-or-not-employee-that-is-the-question-the-test-for-employee-classification-and-its-impact-on-the-usc-case-before-the-the-nlrb/
[4] NCAA v. Board of Regents, 468 U.S. 85 (1984).
[5] https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx
[6] Johnson v. NCAA, 108 F.4th 163 (3d Cir. 2024).
[7] https://frontofficesports.com/ncaa-dartmouth-amicus-brief-mens-basketball-union/
[8] https://www.espn.com/mens-college-basketball/story/_/id/40941682/dartmouth-basketball-players-union-accuses-school-unfair-labor-practices
[9] https://www.sportico.com/law/analysis/2024/college-president-declaring-athletes-employees-1234767315/
[10] https://www.ncaa.org/sports/2021/6/28/mission-and-priorities.aspx
Christopher Atwood (Class of 2025) is pursuing his J.D. at the University at Buffalo School of Law, with a concentration in Intellectual Property.