The NCAA will ask a federal appeals court next month to stop a lawsuit that seeks to have athletes treated as employees who are paid for their time, in the latest high-profile challenge to college sports amateurism.
The Division I athletes and former athletes who filed the suit in Philadelphia are seeking hourly wages comparable to those earned through work-study programs. They claim that the nation’s colleges are violating fair labor practices by failing to compensate them for the time they devote to their sports, which, according to their attorney, can amount to more than 30 hours per week.
After a lower court judge refused to dismiss the case, the NCAA asked the appeals court to rule on whether the case should go to trial. Those arguments had been scheduled for Wednesday, but the court rescheduled them for Feb. 15 late Tuesday.
Plaintiffs’ attorney Paul McDonald stated that the athletes are not seeking large sums of money, but rather a share of the millions spent on their coaches, college administrators, and facilities. He estimated that they could earn $2,000 per month or $10,000 per school year for sports that last five months.
“It’s about the kids having walking-around money that their parents don’t have to give them, out of their own pockets, just like their fellow students working at the bookstore, the library, or at the games,” McDonald, who filed the suit against the NCAA and member schools such as Duke University, Villanova University, and the University of Oregon, said. The NCAA is focused on the court case, but also on Congress, where it hopes to find relief following a string of legal setbacks involving its long-held amateurism model. They include a unanimous decision by the United States Supreme Court last year that lifted the ban on compensation beyond full-ride scholarships and allows colleges to provide athletes with educational benefits such as computers and study abroad program fees.
“Traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of underpaid student athletes,” wrote Justice Brett Kavanaugh in a concurring opinion. “The NCAA does not operate above the law.”
That case did not address whether college athletes are employees entitled to direct pay, but that is the crux of the issue before the 3rd Circuit Court of Appeals.
Speaking at the NCAA convention last week in San Antonio, Baylor University President Linda Livingston called that notion “deeply misguided” and said it would force coaches to become their players’ bosses.
“Turning student-athletes into employees will have far-reaching, staggering, and potentially catastrophic consequences for college sports in general,” said Livingston, chairperson of the NCAA Board of Governors. “We need Congress to recognize the special relationship that student-athletes have with their universities.”
It’s a relationship that’s coming under increasing scrutiny.
In a memo dated September 2021, a top lawyer for the National Labor Relations Board stated that college athletes should be treated as school employees. The NLRB announced last month that it will look into an unfair labor practice complaint involving the rights of University of Southern California football and basketball players.
College athletes can now earn money by using their name, image, or likeness as of July 2021, and the burgeoning industry is seeing millions in deals. The NCAA is still working through its oversight of NIL payments, which were legalized in a number of states.
Meanwhile, players have taken to social media to argue for a share of the hundreds of millions of dollars earned by NCAA schools on sports through marketing, merchandise, and television contracts, including one campaign on the eve of the 2021 NCAA basketball tournament with the hashtag #NotNCAAProperty.
At its convention, the NCAA compared athletes to students who volunteer in theater groups, orchestras, and other campus activities.
“If a scholarship athlete is considered an employee, why isn’t a scholarship trombone player considered an employee? Why isn’t a mathematician on scholarship an employee? “asked former Massachusetts governor Charlie Baker, the incoming NCAA president. “Keep in mind that the vast majority of kids who play sports in college do not play sports in schools where schools make money from sports.”
McDonald stated that such campus groups are student-led, whereas athletes have their time controlled by their coaches in a manner similar to employment.
“Student-athletes are the most controlled kids on any campus,” he says.