The NCAA will next month ask a federal appeals court to block a lawsuit seeking to have athletes treated as employees paid for their time, the latest high-profile challenge to amateurism in college sports.
The Division I athletes and former athletes who sued in Philadelphia are seeking hourly wages comparable to those earned in work-study programs. They say the country’s colleges are violating fair labor practices by not paying them for the time they put into their sports, which their lawyer says can average more than 30 hours a week.
A lower court judge declined to dismiss the case, prompting the NCAA to seek a ruling from the Court of Appeals on whether the issue should indeed go to trial. Those arguments were scheduled for Wednesday, but were moved to February 15 by the court late Tuesday.
Plaintiffs’ attorney Paul McDonald said the athletes are not looking for huge payouts, but want a share of some of the millions spent on their coaches, college administrators and facilities. He suggested they could make about $2,000 a month or $10,000 a school year for sports stretched over five months.
“It’s about the kids having walking around money that their parents don’t have to give them out of pocket, like their fellow students who work in the bookstore, library or at the games,” said McDonald, who filed the lawsuit against the NCAA. and member schools, including Duke University, Villanova University, and the University of Oregon. The NCAA has one eye on the lawsuit but another on Congress, where it hopes to find relief after a series of legal setbacks involving its long-held amateurish model. They include last year’s unanimous decision by the U.S. Supreme Court that lifted the ban on compensation beyond full scholarships, and allowed colleges to give athletes education-related benefits such as computers and program fees for studying abroad.
“Traditions alone cannot justify the NCAA’s decision to build a massive business to raise money on the backs of student-athletes who are not being fairly compensated,” Judge Brett Kavanaugh wrote in a contemporaneous opinion. “The NCAA is not above the law.”
That case stopped at whether college athletes are employees entitled to direct pay, but it is the crux of the matter before the 3rd U.S. Circuit Court panel.
Speaking at the NCAA convention in San Antonio last week, Baylor University president Linda Livingston called that idea “deeply misguided” and said it would force coaches to boss their players.
“Turning student-athletes into employees will have a vast, dizzying and potentially catastrophic impact on college sports at large,” said Livingston, chairman of the NCAA’s Board of Governors. “We need Congress to reaffirm student-athletes’ unique relationship with their universities.”
It is a relationship that is increasingly under scrutiny.
In September 2021, a top lawyer for the National Labor Relations Board said in a memo that college athletes should be treated as employees of the school. Last month, the NLRB said it will investigate an unfair labor practice complaint about the rights of football and basketball players from the University of Southern California.
National Labor Board memo says college football players are employees
As of July 2021, college athletes can now earn money by using their name, image or likeness and the nascent industry is now seeing millions in deals. The NCAA is still working on its oversight of NIL payments after a series of states passed laws allowing it.
And players, meanwhile, have taken to social media to advocate for a cut of some of the hundreds of millions of dollars NCAA schools make from sports through marketing, merchandise and television contracts, including a campaign on the eve of the 2021 NCAA basketball tournament that was held the hashtag (hash)NotNCAAProperty.
The NCAA compared the athletes at its convention to students who perform for free in theater groups, orchestras and other campus activities.
“If you are going to say that a scholarship athlete is an employee, why is a scholarship trombonist not an employee? Why is a stock market mathematician not an employee?” asked the new NCAA president Charlie Baker, the former governor of Massachusetts. “Remember that the vast majority of kids who play sports in college don’t play sports in schools where schools make money from sports.”
McDonald said these kinds of campus groups are student-led, while athletes have their time controlled by their coaches in a way that resembles a job.
“The most monitored kids on a campus are the student-athletes,” he said.
Photo: NCAA headquarters in Indianapolis. (TBEN Photo/Michael Conroy, File)
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