Another nail in the NCAA Coffin … Johnson vs. NCAA Federal Court Case
- Thread starter The Public Enemy
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I do think the slippery slope concern is valid. If a college player is an employee then there is literally no reason for it to be different for a high school player. For that matter, the same logic applies all the way down to grade school.
I think courts in this case are trying to address an ill that no longer exists. Nil is allowable and none of these players have to play or even attend school at all. They all have the ability to forego those requirements and apply for whichever draft they desire. The fact they choose to attend school and participate in athletics is a mutually beneficial arrangement for all parties.
The NCAA finally granted the rights for Student Athletes to hold a part-time job in 1998. It capped their earnings at $2,000 a year.
There’s no risk of high school athletes being deemed employees in the event that a court rules that college athletes are employees. The factors that would lead a court to land at that decision are not present in high school.
Courts are going to be looking at factors such as:
- Do the sports exist primarily for the benefit of the school or of the athlete?
- In high school, sports are not major revenue drivers and high school sports clearly exist for the enrichment of high school students. For college revenue sports, that’s a much murkier situation.
- How much time does participation in a sport demand?
- For college athletes, they’re often required to spend 30+ hours per week on activities tied to their participation in sports. The time commitment of D1 athletes far exceeds the time commitment of high school athletes.
- What is the impact of athletics participation on student athletes’ academic pursuits?
- Team practice/training schedules often limit college student athletes’ ability to take certain classes or pursue certain majors. It’s also common for travel schedules to cause student athletes to miss classes. High school athletes don’t face these same types of issues.
I’d also add that, despite the tone of the judges’ questioning of the NCAA, it’s by no means a certainty that student athletes will be found to be employees.
I think the California revenue sharing bill, assuming it gets passed, will shake things up before the Johnson case gets resolved.
I definitely agree with this and think people should keep this in mind.
Otherwise I disagree with much of the other points. If there is a hard time etc line drawn in the sand there will just be adjustments. Highschool kids have to devote plenty of time to their sports especially when you consider they play multiple sports, weightlifting, etc.
Feel free to disagree, but that’s what the court is looking at. And while high school athletes may invest time in their sports, it doesn’t come close to the time demands of division 1 athletics. It just doesn’t. Time demands also are not the sole factor courts will look at.
At the end of the day though, you could sum up the court’s analysis into two questions:
- Does the athletics program for a specific team exist primarily for the student’s benefit or for the school’s benefit?
- Is the student attending the school primarily as a student or primarily as an athlete?
For college student athletes, you could plausibly argue that the answer to both questions is yes for the revenue sports. For high school student athletes, you can’t really argue that the answer yes to both.
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I don't know what they're looking at. My point was the slippery slope argument had validity. Because courts are looking at something doesn't make it right, even though it might well become law.
In my experience, slippery slopes rarely materialize.
But this is a FLSA case and there are established tests that courts use to determine whether someone should be considered an employee under the FLSA.
In this case, the District court is using the seven factor Glatt test. In response to the NCAA’s motion to dismiss, the District Court indicated that if the plaintiffs allegations are true, then two of the factors suggest they’re not employees, two of the factors are neutral and three of the factors suggest they are employees. That’s what prompted the NCAA’s appeal to the 3rd Circuit.
The only reason the courts are looking at this is because a former student athlete is alleging that the current approach violates the FLSA and filed a lawsuit. This is why courts exist and so it’s hard to argue that this isn’t the right thing for them to do.
Since most college athletic programs operate in the red and athletic departments in general are non-profit entities, seems like it would be a huge stretch to suggest that college athletics are for the benefit of school more than to the benefit of the athlete. That is especially true considering athletes get the value of the education, room, board, training, etc. While some college sports do generate large amounts of revenue, they don't generate large profits for most schools.
I think the second point is more valid. It's clear that in the one and done era of college basketball, many are attending school as an athlete and not as a student. I guess my counter to that would be what is a university supposed to do about that? If a kid qualifies academically to enroll and is good enough to play basketball, how would they legally deny admittance? To me, that is out of the control of the university and should not be considered in the equation.
The fact that most athletic departments “lose money” isn’t relevant because they are simply choosing to operate that way.
The fact of the matter is that UK football, like all power 5 programs, is highly profitable. Not only is it highly profitable, some of its “expenses” aren’t true expenses but are rather transfer payments that shift revenue from the athletics department back to the university. And you can make also make a very strong argument that UK, like all other power 5 schools, chooses to field a football team more for the benefits that accrue to the school.
If you were to create a spectrum for sports teams where you have a typical high school team at one end and a typical professional team at the other, and then place UK football on that spectrum, UK is going to skew heavily towards looking like a professional team. And no amount of spin about most athletics departments losing money can hide that fact.
The problem I see with your argument is UK football isn't a financial entity. It doesn't exist in the way the Bengals exists. It's part of an athletic department. I don't think you can say many athletic departments choose to operate at a loss. They are required by the Federal Government to have equal scholarships and facilities for female and male athletes. So fielding a football team requires expenditures for non-revenue sports to provide opportunities for female athletes equal to those 85 scholarships and equal facilities for whatever those sports happen to be. College football doesn't, and legally can't exist by itself. As I said in another post, it's disingenuous for the Government to require equal funding for female sports while also arguing that the NCAA's model is fatally flawed. On one hand the government is saying there is value in these leagues by forcing colleges to have leagues for women that aren't financially self sufficient, then on the other hand they say they are anti competitive when it suits their purpose. It's just disingenuous. If the Feds were truly interested in free market conditions then colleges wouldn't be saddled with Title 9.
It doesn’t matter that there isn’t a standalone financial entity. UK football is a business. Same with UK basketball. Embedding them within a legal structure that combines them with other sports that are fundamentally different in that respect doesn’t change that.
UCLA and USC aren’t joining the Big Ten because they believe this will maximize the benefit to students. They’re joining the Big Ten because they operate their revenue sports primarily as businesses, and moving to the Big Ten helps them maximize the amount of revenue they can generate from those sports.
The fact of the matter is that revenue generation is the primary driver of all key decisions that schools make with respect to football and basketball. Benefits for the students are a secondary consideration.
And Title IX has no bearing on any of that, nor is it relevant. And if anything, there’s potential for classifying athletes as employees to actually ease Title IX issues. For starters, Title IX does not require equal funding. It merely requires proportional opportunities. If courts were to say that football players are employees and not students, then they’re potentially no longer counted towards Title IX. Which means, you’ve just drastically skewed your participation rate towards female athletes. If anything, you might need to add an additional men’s sport. In that instance, some of the men’s teams that were cut due to Title IX (e.g., men’s wrestling) might come back.
Cost of that also isn’t a compelling argument. Many Division 2 and 3 schools field large athletics programs without any of the revenue support that Division 1 schools receive.
If they are employees, there may be a basis for the employer to require the employee to not compete or gain income from outside sources without permission. If so, the unintended ramification could be the NCAA repealing the current form NIL and simply paying athletes. In fact, athletes, like other employees, could be paid on a scale. Football players may make much more than those athletes who compete in sports that don’t generate an income.
Now, one school could not take this position and survive, but all P5 schools probably could unify around the idea that NIL, as it currently exists, is no more for its employees.
Another ramification could be to just end all non-revenue sports, except those that keep the institution in compliance with Title IX. Get rid of all sports except football and basketball and then have women’s sports that give equal numbers to the football team. Then, maybe the school offers track and field coaching to contract athletes who want to use facilities and get an education while running for themselves.
The average yearly cost for school is over $35k. I do not know how many hours athletes are compelled to “work,” but they are paid. I am sure the lawsuit has analyzed these numbers.
[supplement: a school MAY be able to compete on its own by assuming what are currently NIL payments to individual players, if it’s starting salary was substantial. High caliber athletes who play lower profile positions may take the salary over NIL - you may not however attract as many skill position top recruits. Lol]
Now, one school could not take this position and survive, but all P5 schools probably could unify around the idea that NIL, as it currently exists, is no more for its employees.
Another ramification could be to just end all non-revenue sports, except those that keep the institution in compliance with Title IX. Get rid of all sports except football and basketball and then have women’s sports that give equal numbers to the football team. Then, maybe the school offers track and field coaching to contract athletes who want to use facilities and get an education while running for themselves.
The average yearly cost for school is over $35k. I do not know how many hours athletes are compelled to “work,” but they are paid. I am sure the lawsuit has analyzed these numbers.
[supplement: a school MAY be able to compete on its own by assuming what are currently NIL payments to individual players, if it’s starting salary was substantial. High caliber athletes who play lower profile positions may take the salary over NIL - you may not however attract as many skill position top recruits. Lol]
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Then the same standards can be applied in the same way to highschool and you can get the same result. The only maybe saving difference is that high school is compulsory whereas college is optional. However even though highschool is compulsory, athletic participation is not. So they're very similar although not exactly analogous.
Agree with @Caveman Catfan this will have practical impacts that will be the exact opposite of what anyone wants. Schools will just cancel non revenue sports because they won't want all the additional expenses (ie payroll taxes, workers comp insurance, etc) over and above the already money pit status of those sports.
Athletes really won't want it because it's likely their tuition value, housing, food, etc becomes taxable income. Plus they will have additional duties regarding trade secrets, ip, non compete, etc.
If they do this, they're fixing a problem that no longer exists that will only have results no one wants. Once nil became legal, this whole thing was moot as a practical matter and should've died that way.
It should matter if football is a stand alone entity. Treating it as a separate entity is equivalent to taking a business with four product lines, three of which loses money and one of which makes money, and taxing the product line that makes money, even though the business as a whole loses money. You are kind of making my point. The governments position is disingenuous and they generally do what they want instead of following any kind of logic.
Title 9 has to play in because again, how can the government criticize the NCAA model based on free market principles when they have mandated that the NCAA work under a model that has no relation to a free market? Again it's disingenuous. It's using that criticism when it works in your favor and gets you something that you want but then not considering it when it works against you and denies you something that you want. You can't have gender equity in sports if sports are to be operated as a free market enterprise. All female sports programs would cease to exist and they don't want that so they mandate that college athletics can't operate like a free market. Then they criticize another aspect of college athletics because it doesn't operate like a free market to get something they want. It's hypocrisy.
The court’s decision won’t be the final say for the future. A decision that challenges the future of those sports will likely spur a legislative “fix.”
Here’s the difference as I understand it. High schools do not receive $ from ESPN for them to come in and televise a game. Whereas, ESPN (and other networks) pay BILLIONS just to have right to televise specific conferences.
The business of college sports changed slowly and no one questioned the model that existed for over a century. Two sides of the coin for me. On one side I don’t blame conferences for monetizing their product. There’s no reason for television companies to make fortunes from charging people to watch (Cable, etc…) and to advertise on events with huge audiences. On the other side, I don’t blame players for realizing they are the people creating the product that is generating this BILLION dollar industry.
Don’t forget, most of this started because NCAA was selling video game companies rights to create video games WITH PLAYER”S names on the jersey without wanting to give 1 cent to the actual players who were splashed across video games. I think this caused non-athletes (business people) to look under the hood to actually examine how much $ was exchanging hands.
Just my thoughts.
Whether you believe it should matter that football is not a standalone entity is completely irrelevant. What’s relevant is what the law says, and the law in this instance (FLSA) says football doesn’t need to be a standalone entity.
Let’s use a charity as an example. Let’s say a charity like the United Way decides to open a series of gift shops in several of their locations. Let’s also assume that structurally, these gift shops are part of the charity’s single legal entity.
The gift shop is engaging in ordinary commercial activities that result in sales. If the total value of those sales is more than $500,000 per year, then FLSA applies to those individuals working in the gift shop. However, FLSA requirements do not apply to individuals involved in the other charitable activities that the charity provides. Those activities are exempt.
So again, the fact that UK football or basketball are part of a broader athletic department and not standalone entities does not matter at all. The law says that FLSA can be applied to only the subset of individuals who are involved in what are determined to be commercial activities.
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I doubt that classifying student athletes as employees will end up allowing schools to restrict NIL.
Right now, most states have specific laws that preclude schools from doing this. If an employee athlete is also enrolled in classes at the university (which I’m assuming most still would), then they are still a student in addition to now being an employee. So the current NIL laws would likely still apply (now if schools use athletes who aren’t also enrolled students, then that would change things).
I also think it’s unlikely that a state like California would repeal their NIL law simply because student athletes are now classified employees. And if California keeps their NIL law, then the rest of the states will likely kept their laws as well out of fear of falling behind if they allow NIL restrictions.
Very fair response and I agree about NCAA starting all this with the video games.
The difference is they would still have to comply with all the regular conduct restrictions as a normal employee. They'd have to follow the employee handbook, go through all the same compliance training, etc.
If they are deemed an employee, then it also should extend some die process rights to them if the school wants to separate them from employment.
Finally if they are an employee, there is an argument the school or NCAA cannot restrict their eligibility to the current limits.
Turn back the clock to 1970, 32 teams in the NCAA tourney and no freshman eligibility. It all went sideways from there and the NCAA has only itself to blame. It’s only a matter of time before it implodes altogether.
Let me ask you your opinion on how the NCAA can respond if they lose this case and athletes are found to be employees. As you already know, I think this is ridiculous. The FLSA was written to protect employees of companies, not to take a student who participates in an extra curricular activity and classify them as employees. It's a misuse of the law just to get the outcome they want in my opinion.
That is really an aside, as I want to ask a question. Aren't salaried "exempt" employees exempt from FLSA? If the NCAA losses, couldn't they simply stop providing scholarships, room and board, food, etc., and replace that with a salary that is equivalent to those costs. In other words, UK would put student athletes on salary. The salary would be equal to the scholarship, room and board, etc. So if you want to play sports you have to pay for tuition, room and board, food, etc., just like everyone else. Your salary is set to cover those expenses. Then classify those employees as exempt salary employees. Could that be a viable response?
Not sure colleges can be forced to pay every athlete the same. Professional athletes aren't, WNBA and NBA don't get paid the same, every QB doesn't get paid the same
Agree 100% with you, but it will not prevent some attorney trying to leverage Title IX to attempt to make it happen.
Some small university/college will give equal pay to all athletes to make a statement. Media will make a big deal out of it. However, I’m guessing the true revenue generated from their major sports is already close to zero. Currently, the SEC and Big 10 schools are the ones with the largest television revenue.
Again, these are just my ramblings and expectations. I soon think they’ll be 3 conferences with 20-22 teams. These conferences will break away from NCAA or be in a separate NCAA division. (NCAA doesn’t want to completely lose them for obvious reasons.)
@Cat_Man_Blue, I agree with you. Yes, I think NIL will remain. (They cannot legally remove it.) However, I think if athletes are treated as employees then NIL becomes what it was intended to be. Thus, businesses pay existing player for endorsements, etc... I think current NIL model of giving big $ to recruits who haven't done anything quickly deflates. The big $ will be thrown at existing players enticing them into the transfer portal. I DON"T think treating athletes as employees will prevent other schools from offering major $ to existing players encouraging them to transfer.
I don't like it, but .... nothing prevents business A from offering a potential employee more money to leave business B. It happens every day in the business world and P5 athletics is now a very big business.
I don't like it, but .... nothing prevents business A from offering a potential employee more money to leave business B. It happens every day in the business world and P5 athletics is now a very big business.
I'm gladly going to plant my feet firmly in unreality and just wait for the whole thing to implode. I know there is too much money in it for that to happen, but at this point I would honestly rather watch an inferior product that at least has a semblance of amateurism. I don't mind kids making money off of their likeness, that's a no-brainer. I just wish we could find a balance point where we are talking about reasonable figures; for the students and the institutions. Athletic departments should not be dominating academics.
Again, I know I'm pining for something that can't exist, but the transferring and the arms races and conference realignment has severely eroded my interest.
Again, I know I'm pining for something that can't exist, but the transferring and the arms races and conference realignment has severely eroded my interest.
None of those things have anything to do with attempting to restrict NIL in the event athletes are determined to be athletes, which is the point I was discussing.
That said, none of the points you raise are problematic. Student athletes have to follow a student athlete handbook today and already attending compliance trainings. As employees, some of that content will chance but they’re doing that already and it isn’t a big deal.
They also have some due process protection today, but to the extent that might strengthened as employees, then that’s a good thing.
And lastly, regarding the ability to restrict eligibility, the schools are still free to set whatever qualifications they want for a position and setting a tenure limit to a position is also something that’s pretty commonplace today.
So who decides who is bringing in these millions. Stetson Bennett gets the same as Joe Smith the 4th string walkon punter? NIL is creating jealousy already amongst players……wait til the university starts deciding which players get more money as more valuable employees.
Which players complained because they got to play in front of thousands and on tv was it? You think they would play if no one watched?
If you are serious about this I would really suggest watching some of the other divisions. For example, the Mid-South Conference has a bunch of teams in Kentucky and there are usually several teams that are ranked. These are all NAIA schools, and there is no big money involved, There are also several FCS schools in the area. There was a time when Kentucky had teams playing for national titles at this level. That really isn‘t the case right now, but there is still good football to watch. Heading out to one of these stadiums is a great way to spend a Saturday, and the best part is it is very affordable if you want something to do with the family.
I've definitely considered this. There is still that emotional pull to UK that can't be replicated, however. That's what makes it such a kick in the teeth to see this whole thing evolve into explicit professional athletics. There is no replacement for what came before.
That said, lower level football is indeed a great/cheaper/more hassle-free way to spend a Saturday in the fall with the family. Thanks!
