On Thursday, June 13, 2024, the U.S. House of Representatives Education and Workforce Committee held a hearing on H.R. 8534, entitled “The Protecting Student Athletes’ Economic Freedom Act” (“Act”).  If passed, the Act would declare that student-athletes are not employees with respect to any federal or state law (including the National Labor Relations Act (“NLRA”)) of any institution of higher education, athletic conference, or athletic association based on their participation on a varsity sports team.  The Committee advanced the bill along party lines in a 23-16 vote.  Now that the bill has passed the Committee, the next step is to schedule the bill for a vote or debate before the entire House.

June 13 Hearing on Bill Presents Arguments on Both Sides

Representative Bob Good, a Republican from Virginia, first introduced the bill on May 23, 2024. At the hearing, Congressman Good remarked that classifying student-athletes as employees would set limits on the name, image, and likeness (“NIL”) benefits that student-athletes can now receive.  Congressman Good also stated that employee classification could result in inadvertent negative consequences for these student-athletes, such as strained relationships with coaches, union dues they may have to pay, the possibility of entering into employment contracts, and limiting the “student” element from the student-athlete experience.  Good also warned that classifying college athletes as employees presents an existential threat to college athletics due to the rising costs and liability associated with this change.

Democratic Congressman Bobby Scott voiced opposition to the bill, noting that it “strip[s] varsity athletes from their rights under fundamental labor and employment statutes,” and that many student-athletes spent more than forty hours per week on their sports activities and face significant demands that restrict their academic schedules.  Scott also stated that a number of labor unions and other organizations have expressed concerns with this bill. 

Employment Status of Student-Athletes Is A Timely Issue

The employment status of student-athletes under the NLRA, in particular, has generated significant attention in recent years.  For instance:   

  • In 2021, the NLRB’s General Counsel issued a memorandum, which we covered, asserting that college athletes are employees under Section 2(3) of the Act with the right to form a labor union and engage in other protected, concerted activity, and that the National Labor Relations Board (the “Board”) would pursue unfair labor practice charges in appropriate cases against universities and athletic conferences that do not classify student athletes as employees under the NLRA.
  • Then, last year, we also covered that Region 31 of the Board issued an unfair labor-practice complaint against USC, the PAC-12, and the NCAA for allegedly misclassifying college athletes as non-employees and infringing upon their Section 7 rights under the NLRA.   A hearing was held this past spring before an Administrative Law Judge.   
  • Earlier this year, a NLRB Regional Director found the players on the Dartmouth men’s basketball team are employees under the NLRA and could vote in a union election.  The players voted to unionize, becoming the first unionized college sports team in the United States.  The University appealed the decision to the NLRB. 
  • A case alleging that college athletes are employees entitled to minimum wage and overtime under the Fair Labor Standards Act, Johnson et al. v. NCAA et al., is currently pending before the Third Circuit Court of Appeals.  

Although there have been prior legislative efforts concerning this subject, this is the first time a bill concerning the employment status of college athletes advanced past the Committee phase.  We will continue to provide updates on this topic as developments occur.

Photo of Adam Lupion Adam Lupion

Adam Lupion is a partner in the Firm’s Labor & Employment department and a member of the Labor Management Relations, Sports Law and Employment Litigation Groups. Widely recognized as a leading labor and employment attorney, Adam has been named a “Power Player” by …

Adam Lupion is a partner in the Firm’s Labor & Employment department and a member of the Labor Management Relations, Sports Law and Employment Litigation Groups. Widely recognized as a leading labor and employment attorney, Adam has been named a “Power Player” by Sports Business Journal, a Top 50 L&E Litigator” and “Labor & Employment Star” by Benchmark Litigation, as well as numerous other accolades.

A trusted litigator and counselor, Adam has developed a particular expertise representing sports leagues and teams. He has been at the center of many of the most significant labor and employment matters in the sports industry.

For example, Adam helped guide Major League Baseball (MLB) through its most recent work stoppage with players, represented MLB in grievance arbitrations challenging player discipline for violations of the league’s domestic violence and drug policies, successfully defended MLB against discrimination claims brought by Angel Hernandez, and defended MLB and its member Clubs in class and collective actions involving pay practices of minor league players and claims of age discrimination by scouts. In addition, Adam has handled several litigations and arbitrations for the National Hockey League and National Football League, and has advised college athletic conferences and universities across the broad spectrum of labor and employment laws.

Adam also leads the Firm’s MLB Salary Arbitration practice, and is one of the most sought-after practitioners to represent Clubs during contract negotiations and at arbitration hearings against some of the game’s most prominent players.

Adam’s practice extends far beyond the world of sports, as he has extensive experience representing healthcare, higher education, financial services, media and entertainment, telecommunications, energy, retail and hospitality clients in a wide variety of labor and employment law matters in state and federal court, and before administrative agencies.

He has lectured on labor and employment law at Cornell University, New York University School of Law, and Cardozo Law School. He frequently represents the Firm and the Sports Law Group on panel discussions and at career seminars for current and prospective lawyers.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of David Gobel David Gobel

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of

David R Gobel is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

David Gobel earned his J.D at USC Gould School of Law, where he was a Senior Citations Editor of the USC Journal of Interdisciplinary Law, and part of the executive committee of USC’s Music Law Society. Prior to law school, David worked as a research executive for a marketing research firm in New York.