PHILADELPHIA – The NCAA will this week ask a federal appeals court to block a lawsuit aimed at treating athletes as employees being paid for their time, the latest high-profile challenge to amateurism in college sports.
The Division I athletes and former athletes who filed the lawsuit in Philadelphia on Wednesday are seeking hourly wages similar to those 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 sport, which their attorney says can average more than 30 hours a week.
Attorney Paul McDonald said the issue isn’t about huge payouts, but that the athletes share in some of the millions being 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 spread out over five months.
“It’s about the kids having running money that their parents don’t have to give them out of their own pockets, just like their fellow students who work at the bookstore, the library, or 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 kept one eye on the court case but another on Congress, where it hopes to return after a series of legal setbacks related to its protracted dabbling model, which includes the US Supreme Court’s unanimous decision last year lifted the ban on compensation beyond full scholarships and allows colleges to provide athletes with educational benefits such as computers and tuition for study abroad programs.
“Traditions alone cannot justify the NCAA’s decision to build a massive fundraising enterprise on the backs of student-athletes who are not fairly compensated,” Judge Brett Kavanaugh wrote in a concurrent statement. “The NCAA is not above the law.”
That case ended with the question of whether college athletes are employees eligible for direct payments, but it’s the crux of the issue in the US 3rd District Court on Wednesday.
Baylor University President Linda Livingston called the notion “deeply misguided” at the NCAA conference in San Antonio last week and said it would force coaches to become their players’ bosses.
“Turning student-athletes into employees will have far-reaching, overwhelming and potentially catastrophic implications for varsity sports in general,” said Livingston, chairman of the NCAA Board of Governors. “We need Congress to reaffirm the unique relationship student-athletes have with their universities.”
It’s a relationship that’s increasingly under scrutiny.
In September 2021, a top attorney for the National Labor Relations Board said in a memo College athletes should be treated like employees the school. Last month, the NLRB said it would investigate a complaint about unfair labor practices with the rights of the University of Southern California football and basketball players.
As of July 2021, collegiate athletes can now make money using their name, likeness or likeness, and the burgeoning industry is now seeing multi-million dollar deals. The NCAA is still work through its oversight of NIL payments after a number of states passed laws allowing it.
And players have meanwhile taken to social media to advocate for a cut in some of the hundreds of millions of dollars NCAA schools make from sports marketing, merchandise and television deals, including a campaign on the eve of the 2021 NCAA basketball tournament that carried the hashtag #NotNCAAProperty.
The NCAA compared the athletes at its convention to students performing in theater groups, orchestras, and other campus activities without pay.
“If you say a grantee is an employee, why isn’t a grantee an employee? Why isn’t a grantee an employee?” asked incoming 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 school, which is where schools make money from sports.”
McDonald said these types of campus groups are led by students, while athletes have their time controlled by their coaches in a way akin to employment.
“The most controlled kids on any campus are the student-athletes,” he said.
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AP College Sports Writer Ralph D. Russo contributed to this report. Follow him on https://twitter.com/ralphDrussoAP. Follow AP Legal Affairs writer Maryclaire Dale at https://twitter.com/Maryclairedale
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