The Wild West of name, image, and likeness: A collective collegiate bargain - College athletes employees?

Part 4 in the series "The Wild West of name, image, and likeness."

Remember when, just 13 months ago – and for the preceding 180 years – college athletes were undeniably considered to be amateurs, unable to receive compensation in exchange for playing their respective sports? That all changed in the blink of an eye, on July 1, 2021, when the NCAA allowed student-athletes throughout the country to profit from their name, image, and likeness. Now, just a year later, such a monumental change is proving to be just the tip of the iceberg. A handful of lawsuits are slowly making their way through the courts with potential to further alter the landscape of collegiate athletics – and employment law. 

Johnson v. NCAA

The most prominent case is Johnson v. NCAA. In November 2019, former Villanova football player Ralph “Trey” Johnson sued the NCAA and nearly two dozen universities in the United States District Court for the Eastern District of Pennsylvania, claiming that college athletes should be recognized as employees of the schools they attend, under the Fair Labor Standards Act. Johnson also claims that the NCAA is a joint employer alongside the school an athlete competes for. Since then, the case has been amended and grown to include other current or former college athletes, and with the plaintiffs now seeking to be certified as a class action. The case now sits before the Third Circuit Court of Appeals with the certified question being: whether Division I student-athletes can be employees of the universities they attend for purposes of the Fair Labor Standards Act, solely by virtue of their participation in interscholastic athletics.

A ruling in favor of the athletes would put the Third Circuit at odds with the Seventh and Ninth Circuits’ rulings in the opposite direction (Berger v. NCAA and Dawson v. NCAA, respectively). The circuit split would increase the likelihood that the Supreme Court steps in to settle the matter before Johnson is ultimately decided, to avoid a scenario in which different regions of the country abide by different laws about whether or not college athletes can be considered employees. If a case such as Johnson were to work its way up to the Supreme Court, it would be heard by a bench that appears rather hostile toward the NCAA’s position.

Alston v. NCAA

Interestingly, the athletes seem to have ever-growing momentum and support on their side. Most notably coming in the form of Supreme Court Justice Brett Kavanaugh, who offered insight into his viewpoint through his concurring opinion in the landmark Alston v. NCAA ruling. Justice Kavanaugh opined that “the NCAA’s business model would be flatly illegal in almost any other industry in America.” Justice Kavanaugh further wrote that the NCAA’s remaining rules restricting athlete compensation deserve further antitrust scrutiny, essentially welcoming future lawsuits against the NCAA.

Berger v. NCAA

In addition to Justice Kavanaugh’s opinion, there is another concurrence that may play a role in the Johnson case. It was authored by Judge David F. Hamilton on the Seventh Circuit Court of Appeals, in Berger v. NCAA. While the appeals court ruled in favor of the NCAA in Berger, agreeing that college athletes were not employees, Judge Hamilton saw room for distinction. The athletes in Berger, he wrote, were track athletes at Penn, a school with no athletic scholarships and a sport without revenue. “In this case, therefore, the economic reality and the sometimes frayed tradition of amateurism both point toward dismissal of these plaintiffs’ claims,” he wrote.

That made it just theory for those athletes, he added. But, Judge Hamilton cautioned, there are different conditions in other cases. “I am less confident, however, that our reasoning should extend to students who receive athletic scholarships to participate in so-called revenue sports like Division I men’s basketball and FBS football,” he wrote. “In those sports, economic reality and the tradition of amateurism may not point in the same direction.”

NLRB support for student athletes

Further support for the athletes is coming from the National Labor Relations Board. Its general counsel, Jennifer Abruzzo, wrote last fall in a memo that she believed college football players and certain other athletes in revenue sports at private universities are indeed employees of their respective schools, which should give them the right to collectively bargain and improve their conditions of employment. Abruzzo also threatened to bring legal action against schools, conferences and the NCAA if they continue to refer to players as “student-athletes,” stating that the term purposefully misclassifies and obscures their employment status. In fact, two distinct athlete advocacy groups have filed unfair labor practice charges against the NCAA, which are currently pending.

“I view (Johnson v. NCAA) as just part of the continuing effort by some to professionalize college sports,” said Matt Mitten, the executive director of the National Sports Law Institute at Marquette University. Mitten, who is also a member of the NCAA’s first Board of Directors of the Forum for the Scholarly Study of Intercollegiate Athletics, believes that if the court finds in the athletes’ favor, it could have significant downstream effects. One important resolution would be whether the NCAA is a joint employer of the athletes; because the NCAA is a private organization, that determination could allow college athletes to unionize as employees and collectively bargain for their rights. 

For now, college athletes, athletic directors, conference commissioners, and the universities themselves are all anxiously awaiting some semblance of clarity from the pending litigation. While we are likely still months away from a definitive answer on whether college athletes are indeed employees, it is clear that the NCAA’s traditional ways have been upended and a new structure is being developed in real time. In the absence of legislative action, the judicial system has the power to influence college athletics toward a professional employment model. Such a model would create an entirely new marketplace for administrators, college athletes, and labor and employment lawyers to navigate. For example, collective bargaining could enter the student athlete rubric; considerations on general contractual advising, plausibility of non-compete/non-solicit provisions, confidentiality and intellectual property restrictions, and underlying implications as to who the party at interest is: the university – or the school’s collective, who is actually paying the athletes. As always, we will continue to update on this topic as it continues to unfold.