While there’s no denying March Madness brings the National Collegiate Athletic Association (NCAA) considerable attention, the Association has been the subject of significant press over the last year for several hot-button employment-related issues.
First, there has been ongoing discussion concerning name, image, and likeness (NIL) issues. In February 2021 Senator Chris Murphy (D-Conn) and Congresswoman Lori Trahan (D-MA 03) filed an act entitled “College Athlete Freedom Act” which proposed that students should be allowed to monetize their NIL.
In June 2021, the Supreme Court held in Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021), that NCAA rules limiting education-related compensation violated the Sherman Act (an anti-monopoly act). The NCAA responded by announcing they were implementing interim rules concerning student athlete name, image, and likeness, and allowing students to monetize these attributes. What has resulted from these developments is a new landscape where students can enter into agreements with various sponsors, but they are largely left on their own to navigate the process.
The second issue is renewed debate over the question of whether athletes are employees.
The National College Players Association (NCPA) brought an unfair labor practice charge February 2022 against the NCAA, the UCLA and the Pac-12 conference. The charge alleges:
Within the past 6 months, the employers have interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7 of the Act by repeatedly misclassifying employees as “student-athlete” nonemployees to circumvent the Act and their right under the Act. Within the past 6 months, the employers have interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7 of the Act by maintaining unlawful rules and policies in its handbook, including restricting communications with third parties, in the media, etc.
There is other litigation currently ongoing in the Eastern District of Pennsylvania, concerning athlete pay. Johnson v. Nat’l Collegiate Athletic Ass’n, et al, Docket No. 2:19-cv-05230 (E.D.Pa. Nov 6, 2019).
For some, this may sound familiar. Only a few years ago, the Board decided Northwestern Univ., 362 N.L.R.B. 167 (2015), ultimately holding that college football players were not employees. However, since that decision, the Board has found that graduate research assistants at Columbia University and other higher education institutions are employees under the NLRA. See Columbia Univ., 364 N.L.R.B. 90 (2016). Further, the NLRB General Counsel supports college athletes being considered employees, as stated in her September 29, 2021 memorandum entitled Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the NLRA.
The L&E Team and I will be keeping track of these developments…during March madness and beyond!
For more information, please contact Emily Coombs Waddell or another member of Verrill’s Employment and Labor Practice Group.