College Athletes in Revenue-Generating Sports as Employees: A Look into the Alt-Labor Future
34 Pages Posted: 31 Jan 2020
Date Written: January 30, 2020
The writing is on the wall. In the next few years, it seems clear now that at least the elite student athletes in Division I power conferences in college football and basketball, revenue-generating sports programs, will be deemed employees for the purpose of determining college and university legal obligations toward them. The inevitability of this sea change in the way these athletes are viewed will be the culminating result of various lawsuits as well as state legislation under a myriad of labor, employment, and antitrust laws. Although plaintiff-athletes have so far mostly lost in federal litigation, it seems clear that cases will continue to be brought and that eventually these college athletes will prevail because the amateur ideal of the college athlete, at the very least in sports that generate substantial revenue for schools, is crumbling and unsustainable for these athletes at the same time that various legal tests of employee status as well as simple economic reality reveal these athletes are truly employees. More recent evidence of erosion in amateur status is found in state legislation requiring that these athletes be allowed direct payment for use of name, image, and likeness (NIL) by commercial entities. After California passed a law in September, 2019, and Florida threatened to pass the same law in late October, 2019, the NCAA yielded to pressure and announced that it will allow student athletes to receive NIL payments.
The current landscape of labor, employment, and antitrust litigation involving mostly elite college athletes in revenue-generating sports represents a piecemeal approach to vindicating these students’ rights as employees. As the NCAA’s primary defense that these particular athletes are in fact amateurs falls apart, nobody has really focused on the perhaps more interesting and fundamental question about what it will mean for these students to be viewed as employees. How will their lives be changed? Will they be able to retain an identity as a student? How will expectations change in the college field of play and in the locker room as a result of their new status as employees who happen also to be students? What about students in non-power conferences who might still be viewed as students and amateur athletes? How will employee athletes be paid by colleges and universities, and what will that mean with respect to the level of control colleges and universities have over them? Will collective bargaining take place in college, and, if it does, what will it look like? Will it be undertaken on a national basis, a conference basis, or in individual schools? What will student athlete employees and colleges and universities bargain over? In attempting to begin to answer these questions, this article will explore the brave new alt-labor world of college football and basketball “employees” in revenue-generating sports.
Suggested Citation: Suggested Citation