NatIonal Labor Relations Board to pursue unlawful labor practices against USC, Pac-12, NCAA

[Thecycle27]

^ I think this will be a legal issue before it becomes a govt issue.

The new NCAA President gives me hope that they’re not just going to keep their heads in the sand. (Totally ignoring NIL and paying players made it worse.)

Compensation is a forgone conclusion. The issue now is whether it comes directly from school (contract or employee) or from NIL. I’m 100% speculating, but I think conference commissioners want it to come from schools. They know the current situation is not sustainable. This is reason I expect to see a breakaway from NCAA.

Yep that is why the SEC and Big Ten are in the best position with their TV deals.

 

[satcheluk]

There is a legal definition of an employee. What you're saying isn't it.

From IRS.gov: Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.

 

[BigBlueFanGA]

From IRS.gov: Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.

The IRS is not the one who defines "employee". The courts have been very specific about it. What you posted infers a transfer of money has occurred or is going to occur. It is then explaining when you consider the person receiving the money as an employee or independent contractor.

That has nothing to do with athletes. There is no expectation of payment, therefore they are not employees.

 

[UKnCincy]

The IRS is not the one who defines "employee". The courts have been very specific about it. What you posted infers a transfer of money has occurred or is going to occur. It is then explaining when you consider the person receiving the money as an employee or independent contractor.

That has nothing to do with athletes. There is no expectation of payment, therefore they are not employees.

That’s not exactly accurate when it comes to defining an employee.

The IRS can determine who’s an employee if the question comes up in relation to something that falls within the IRS’s scope. For example, if you have misclassified an employee as a contractor and they should have been subject to income tax withholding, then that’s an IRS issue. The IRS will determine employment status using a test they’ve developed based on guidance from the courts.

In the USC example, it’s an NLRA issue which has to do which employees’ ability to organize. In either case, I believe both IRS and NLRA issues will be resolved using derivations of the common-law test. Other laws/agencies might use the economic realities test or a hybrid of the two. It just depends upon the issue and which laws/regulations apply.

 

[UKnCincy]

From IRS.gov: Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.

It’s not as straightforward as that. The actual IRS test uses about 20 factors they consider to determine if someone is an independent contractor or an employee.

At any rate, the USC case is an NLRA issue and not an IRS issue, so it’s not exactly the same thing.

It also seems to me that the case of student athletes isn’t as straightforward as determining employment status at for profit businesses. All of these employment tests start with the assumption that someone is a paid worker. The question then becomes simply: is the worker a contractor or an employee?

For student athletes, it seems to me the first question to answer is: are they in fact “workers”? If the answer is yes, then you can move on to asking the question of what type of worker are they (i.e., employee, contractor, volunteer)? But I don’t know that the first question about worker status has been definitively answered yet. Admittedly though, I’m not an expert in labor law.

 

[rqarnold]

The IRS is not the one who defines "employee". The courts have been very specific about it. What you posted infers a transfer of money has occurred or is going to occur. It is then explaining when you consider the person receiving the money as an employee or independent contractor.

That has nothing to do with athletes. There is no expectation of payment, therefore they are not employees.

Huh? The courts make decisions based upon laws that are passed by the same people who make the rules for the IRS.
Scholarship athletes do have an expectation of compensation…compensation isn’t limited to cash payments.

 

[BigBlueFanGA]

That’s not exactly accurate when it comes to defining an employee.

The IRS can determine who’s an employee if the question comes up in relation to something that falls within the IRS’s scope. For example, if you have misclassified an employee as a contractor and they should have been subject to income tax withholding, then that’s an IRS issue. The IRS will determine employment status using a test they’ve developed based on guidance from the courts.

In the USC example, it’s an NLRA issue which has to do which employees’ ability to organize. In either case, I believe both IRS and NLRA issues will be resolved using derivations of the common-law test. Other laws/agencies might use the economic realities test or a hybrid of the two. It just depends upon the issue and which laws/regulations apply.

I know that. I've been running businesses for 35 years. Thats basically what I said, I just didn't feel like typing all that.

 

[BigBlueFanGA]

Huh? The courts make decisions based upon laws that are passed by the same people who make the rules for the IRS.
Scholarship athletes do have an expectation of compensation…compensation isn’t limited to cash payments.

Really, what employment pay do athletes expect?

 

[BigBlueFanGA]

It’s not as straightforward as that. The actual IRS test uses about 20 factors they consider to determine if someone is an independent contractor or an employee.

At any rate, the USC case is an NLRA issue and not an IRS issue, so it’s not exactly the same thing.

It also seems to me that the case of student athletes isn’t as straightforward as determining employment status at for profit businesses. All of these employment tests start with the assumption that someone is a paid worker. The question then becomes simply: is the worker a contractor or an employee?

For student athletes, it seems to me the first question to answer is: are they in fact “workers”? If the answer is yes, then you can move on to asking the question of what type of worker are they (i.e., employee, contractor, volunteer)? But I don’t know that the first question about worker status has been definitively answered yet. Admittedly though, I’m not an expert in labor law.

I agree and but I think their employment status has been determined by lower courts. Im not sure about SCOTUS but you know far more that I on these issues.

 

[rqarnold]

Really, what employment pay do athletes expect?

I said compensation. Anything of value traded for services is in fact, pay.

 

[rqarnold]

It’s not as straightforward as that. The actual IRS test uses about 20 factors they consider to determine if someone is an independent contractor or an employee.

At any rate, the USC case is an NLRA issue and not an IRS issue, so it’s not exactly the same thing.

It also seems to me that the case of student athletes isn’t as straightforward as determining employment status at for profit businesses. All of these employment tests start with the assumption that someone is a paid worker. The question then becomes simply: is the worker a contractor or an employee?

For student athletes, it seems to me the first question to answer is: are they in fact “workers”? If the answer is yes, then you can move on to asking the question of what type of worker are they (i.e., employee, contractor, volunteer)? But I don’t know that the first question about worker status has been definitively answered yet. Admittedly though, I’m not an expert in labor law.

Matt Jones said in the law class he teaches at Georgetown they discussed this very subject before the ruling. He said there were 15 tests..the students all athletes said that they met 13 of the 15 tests.

 

[mebeblue2]

I said compensation. Anything of value traded for services is in fact, pay.

if they ever consider scholarships "value traded for services" then the athletes getting those scholarships and all the other free stuff are not going to like paying tens of thousands in taxes
it will not affect the high end players but players at small schools are going to get hammered
i doubt they ever make that happen

 

[rqarnold]

if they ever consider scholarships "value traded for services" then the athletes getting those scholarships and all the other free stuff are not going to like paying tens of thousands in taxes
it will not affect the high end players but players at small schools are going to get hammered
i doubt they ever make that happen

There is a carve out in the tax code specifically for scholarships.

 

[BigBlueFanGA]

I said compensation. Anything of value traded for services is in fact, pay.

No, it clearly isn't. If you were correct the players would be getting taxed to death.

 

[UKnCincy]

I agree and but I think their employment status has been determined by lower courts. Im not sure about SCOTUS but you know far more that I on these issues.

The Supreme Court has not weighed in on this yet, mainly because prior cases have consistently resulted in courts ruling that student athletes are not employees, particularly in FLSA cases.

However that might change depending on how the Johnson case goes. If the Third Circuit were to rule differently, then that would make this issue much more likely to go before the Supreme Court because different circuits will have ruled differently on the issue.

Regardless, if I’m not mistaken, I believe those prior cases tended to jump straight to the employee question and glossed over the question of whether the athletes’ services actually constituted “work” and they were thus “workers”.

I’d have to go back and re-read the ruling, but I thought that was one of a few reasons for the decision in the Bergen case. The plaintiffs never asserted that what they did as athletes constituted work.

 

[satcheluk]

The IRS is not the one who defines "employee". The courts have been very specific about it. What you posted infers a transfer of money has occurred or is going to occur. It is then explaining when you consider the person receiving the money as an employee or independent contractor.

That has nothing to do with athletes. There is no expectation of payment, therefore they are not employees.

They expect to get paid now.

 

[satcheluk]

It’s not as straightforward as that. The actual IRS test uses about 20 factors they consider to determine if someone is an independent contractor or an employee.

At any rate, the USC case is an NLRA issue and not an IRS issue, so it’s not exactly the same thing.

It also seems to me that the case of student athletes isn’t as straightforward as determining employment status at for profit businesses. All of these employment tests start with the assumption that someone is a paid worker. The question then becomes simply: is the worker a contractor or an employee?

For student athletes, it seems to me the first question to answer is: are they in fact “workers”? If the answer is yes, then you can move on to asking the question of what type of worker are they (i.e., employee, contractor, volunteer)? But I don’t know that the first question about worker status has been definitively answered yet. Admittedly though, I’m not an expert in labor law.

It may not be, but I cut that directly from IRS.gov. I'm sure there is more nuance and I am not a labor lawyer, though I was a global HR consultant for nearly a decade, so I'm not completely speaking out of my azz. I just think it is ridiculous for anyone to say with 100% certainty that they aren't employees, as much as it is to say they are and I think it appears to be an easier case to say they are than to defend the status quo. It's illegal to have unpaid internships unless they are students and receiving class credit for their work. All the financial firms I have worked for have done away with unpaid internships. They all get paid now. Amateurism in sports was born from classism, so it's time to adjust the boundaries, though I hope the product is remains as enjoyable.

 

[UKnCincy]

They expect to get paid now.

Believing that you should be paid is not the same thing as actually expecting to be paid.

 

[UKnCincy]

It may not be, but I cut that directly from IRS.gov. I'm sure there is more nuance and I am not a labor lawyer, though I was a global HR consultant for nearly a decade, so I'm not completely speaking out of my azz. I just think it is ridiculous for anyone to say with 100% certainty that they aren't employees, as much as it is to say they are and I think it appears to be an easier case to say they are than to defend the status quo. It's illegal to have unpaid internships unless they are students and receiving class credit for their work. All the financial firms I have worked for have done away with unpaid internships. They all get paid now. Amateurism in sports was born from classism, so it's time to adjust the boundaries, though I hope the product is remains as enjoyable.

Look, I’m as pro-student athlete as anyone but my point on the employment issue for student athletes is that it is anything but cut and dry. It really is a pretty unique situation and it’s not a straightforward analysis.

Even on a single team, the potential status could vary from player to player. Are all of them employees, or just the ones on scholarship?

For scholarship players, is there a difference in employment status between a starter and a redshirt freshman who is simply lifting weights and eating at the training table and doesn’t see reps at practice? Does only weight training and eating constitute “work”, especially if the freshman could freely transfer before the school accrued any benefit?

In terms of college athletics, the employment question is far more complicated than the anti-trust issue in the Alston case.

 

[BigBlueFanGA]

They expect to get paid now.

Not by the school.

 

[hmt5000]

Interesting. If students are athletes and can unionize for compensation, what will that do to the NIL model over the long run?

That is why the ncaa shouldn't have fought that losing case and should of agreed to pay athletes a stipend. Let each sport negotiate a rate for their athletes and go with it. As soon as the court ruled anything goes and the ncaa had absolutely no plan, as usual, you knew this was going to blow up eventually. I'm just shocked it got this bad this fast. They need to change the transfer rules asap or they will kill college sports.

 

[satcheluk]

Look, I’m as pro-student athlete as anyone but my point on the employment issue for student athletes is that it is anything but cut and dry. It really is a pretty unique situation and it’s not a straightforward analysis.

Even on a single team, the potential status could vary from player to player. Are all of them employees, or just the ones on scholarship?

For scholarship players, is there a difference in employment status between a starter and a redshirt freshman who is simply lifting weights and eating at the training table and doesn’t see reps at practice? Does only weight training and eating constitute “work”, especially if the freshman could freely transfer before the school accrued any benefit?

In terms of college athletics, the employment question is far more complicated than the anti-trust issue in the Alston case.

We are in agreement here.

 

[jauk11]

I suspect if there is no revenue generated, one could argue that is volunteerism or maybe, in that case, lawyers could argue the value of the scholarship exceeds revenue generated, so the scholarship alone is appropriate compensation. There's no way to argue that with the revenue sports.

MAYBE, for the FEW schools that generate a profit from sports. But sports does generate a lot of donations for academics from fans. Look up the article by the President of Boise State about the positive influence upgrading their sports programs has had on their academic University.

 

[tngamecock#]

It's about revenue. If the theater department had a multi-million dollar TV contract, then they would be a part of this too.

Or maybe, just maybe, if I get my school paid for and I can play a sport I like/love at the same time, while in front of thousands of fans and a tv audience, what a plus for me as I try to earn NIL money.

OR

Let me be an employee of the university with a salary cap

Better yet, let all professors who teach such “employees” share in the revenue. We could take away scholarships and let college be like HS where students simply try out for the team if they want to play Since things are so bad for them.

 

[tngamecock#]

People who generate income for other people are employees. We’re not talking about selling $5.00 tickets at middle-school football games where the schools still lose $.

So what about small schools that actually lose money? So as an employee, will everyone be paid the same since they do the same job and will have roughly the same tenure? Should Tom Brady make the same as the practice squad punter…?
Then wait until gender equity for “wages” comes into play. If the volleyball team sells one ticket, that is considered generating income…..don’t confuse income with profit.

 

[sluggercatfan]

People who generate income for other people are employees. We’re not talking about selling $5.00 tickets at middle-school football games where the schools still lose $.

We’re talking about players generating close to a BILLION dollars a year for their conferences. SEC paid out over $700 MILLION dollars last year to schools in our conference. This is after the conference pocketed alot of money on the conference level. What do you call people who generate income for businesses?

I once thought it was heresy to consider paying college players. But, college sports morphed into money making machines that simply didn’t exist several years ago. NCAA and schools have milked this gravy train for awhile. I think it was allowed because many people (like me and probably you) thought paying players wasn’t something that was supposed to happen in college sports.

College athletics became a big time money making machine that pedals academics on the side. It’s time for them to pay the piper. Frankly, I think it’s the best thing for football/basketball because treating them as employees will greatly reduce impact of NIL.

Going to be thousands of young men and women lose access to a FREE college education when many of these programs are shut down. Be careful what you ask for...

 

[sluggercatfan]

So what about small schools that actually lose money? So as an employee, will everyone be paid the same since they do the same job and will have roughly the same tenure? Should Tom Brady make the same as the practice squad punter…?
Then wait until gender equity for “wages” comes into play. If the volleyball team sells one ticket, that is considered generating income…..don’t confuse income with profit.

Let's go...UK sports that lose money. Every sport but fb and men's bb. If it's only about money, shut them down. This is becoming a farce.

 

[sluggercatfan]

I said compensation. Anything of value traded for services is in fact, pay.

Like room/board, free tuition, food, medical ,personal trainers, private chefs and nutritionist, free clothes and I'm sure I'm leaving something out. Guessing that would be approaching north of 100k a year just at UK. Greed will kill college sports as we know it if it hasn't already.

 

[Sawnee Cat]

Or maybe, just maybe, if I get my school paid for and I can play a sport I like/love at the same time, while in front of thousands of fans and a tv audience, what a plus for me as I try to earn NIL money.

OR

Let me be an employee of the university with a salary cap

Better yet, let all professors who teach such “employees” share in the revenue. We could take away scholarships and let college be like HS where students simply try out for the team if they want to play Since things are so bad for them.

No doubt.

We can take this to the extreme and make all athletic events at a college or university Club Sports. No scholarship and open to all students. Sally Mae could try out for QB on the football team just like Joe Jockstrap.

The football and basketball program can be like the Ultimate Frisbee team. Or ice hockey team. No money exchanged and no scholarship. Play for the love of the game or go pro somewhere. It will end a lot of headaches. The participants can do fund raisers like the high school Marching Band. Donations and sponsors can be the norm. And no admission charge to the games.

At the present pace we are killing the golden goose but that is what happens when lawyers get involved and law suits start flying left and right.

Let's go back to 1888.

 

[rqarnold]

Like room/board, free tuition, food, medical ,personal trainers, private chefs and nutritionist, free clothes and I'm sure I'm leaving something out. Guessing that would be approaching north of 100k a year just at UK. Greed will kill college sports as we know it if it hasn't already.

Has greed killed pro sports?
Your imagination is getting the best of you. First off, there are carve-outs in the tax code that treat students and student athletes differently than non-students. You really think Congress would pass, a POTUS would sign a bill to repeal those protections? A provision that probably disproportionately targets minorities??? Not a chance in France.

 

[satcheluk]

Or maybe, just maybe, if I get my school paid for and I can play a sport I like/love at the same time, while in front of thousands of fans and a tv audience, what a plus for me as I try to earn NIL money.

OR

Let me be an employee of the university with a salary cap

Better yet, let all professors who teach such “employees” share in the revenue. We could take away scholarships and let college be like HS where students simply try out for the team if they want to play Since things are so bad for them.

You can't have a salary cap without collective bargaining, which makes the players employees who then must unionize. And you can't have a reasonable debate with folks who use red herrings like they use snot rags. Professors already "share in the revenue", as many, if not most, earn 6 figure salaries.

 

[jauk11]

Has greed killed pro sports?
Your imagination is getting the best of you. First off, there are carve-outs in the tax code that treat students and student athletes differently than non-students. You really think Congress would pass, a POTUS would sign a bill to repeal those protections? A provision that probably disproportionately targets minorities??? Not a chance in France.

There is no doubt greed has killed pro sports for me, I didn't even watch the super bowl this year. If I happen to run across a game where a UK player is a dominant player I MIGHT watch a bit of it------IF he is doing well. And I played flag football at a pretty high level in a dozen flag football leagues after playing football in high school, and I started four of the leagues from scratch, plus officiated youth and high school football until I was 65.

Screw the pros.

 

[bballcat4]

So what about small schools that actually lose money? So as an employee, will everyone be paid the same since they do the same job and will have roughly the same tenure? Should Tom Brady make the same as the practice squad punter…?
Then wait until gender equity for “wages” comes into play. If the volleyball team sells one ticket, that is considered generating income…..don’t confuse income with profit.

I agree with you and have said repeatedly that lawyers will jump into the fray and use Title IX to demand equal pay for all athletes.

This is what I think will happen in next 1-3 years. There will be major conferences that consists of 20-22 teams. SEC and Big-10 will cherry pick and whoever is left will race to form at 3rd league. Television contract will be huge. (Bigger than the upcoming $80 mil a year per team that just Okla and Tx are going to generate.) These 3 conferences will pull away from NCAA and form their own entity. NCAA does not want to lose those teams because of basketball tourn, so 2nd option is that NCAA creates a separate division for the high revenue conferences.

I agree with you that only schools who can realistically afford to pay players are mainly in SEC and Big10. Other schools are making minimal $ from athletics. Yet, SEC and Big10 are printing $. Courts will not allow them to rake in millions and not compensate athletes.

Don’t forget what started this... NCAA sold rights to video game companies and even had players’ name on the jerseys, yet refused to give $ to those players who were splashed across millions of video games. I think this caused big business to investigate college/ncaa income.

 

[tngamecock#]

Has greed killed pro sports?
Your imagination is getting the best of you. First off, there are carve-outs in the tax code that treat students and student athletes differently than non-students. You really think Congress would pass, a POTUS would sign a bill to repeal those protections? A provision that probably disproportionately targets minorities??? Not a chance in France.

So what tax code r u referring to?

 

[UKnCincy]

I agree with you and have said repeatedly that lawyers will jump into the fray and use Title IX to demand equal pay for all athletes.

This is what I think will happen in next 1-3 years. There will be major conferences that consists of 20-22 teams. SEC and Big-10 will cherry pick and whoever is left will race to form at 3rd league. Television contract will be huge. (Bigger than the upcoming $80 mil a year per team that just Okla and Tx are going to generate.) These 3 conferences will pull away from NCAA and form their own entity. NCAA does not want to lose those teams because of basketball tourn, so 2nd option is that NCAA creates a separate division for the high revenue conferences.

I agree with you that only schools who can realistically afford to pay players are mainly in SEC and Big10. Other schools are making minimal $ from athletics. Yet, SEC and Big10 are printing $. Courts will not allow them to rake in millions and not compensate athletes.

Don’t forget what started this... NCAA sold rights to video game companies and even had players’ name on the jerseys, yet refused to give $ to those players who were splashed across millions of video games. I think this caused big business to investigate college/ncaa income.

Which portion of Title IX would require equal pay?

 

[zwynn10]

People who generate income for other people are employees. We’re not talking about selling $5.00 tickets at middle-school football games where the schools still lose $.

We’re talking about players generating close to a BILLION dollars a year for their conferences. SEC paid out over $700 MILLION dollars last year to schools in our conference. This is after the conference pocketed alot of money on the conference level. What do you call people who generate income for businesses?

I once thought it was heresy to consider paying college players. But, college sports morphed into money making machines that simply didn’t exist several years ago. NCAA and schools have milked this gravy train for awhile. I think it was allowed because many people (like me and probably you) thought paying players wasn’t something that was supposed to happen in college sports.

College athletics became a big time money making machine that pedals academics on the side. It’s time for them to pay the piper. Frankly, I think it’s the best thing for football/basketball because treating them as employees will greatly reduce impact of NIL.

It will reduce the impact of NIL only because the pretend game of paying players to make personal appearance, sign autographs, etc so boosters can pay them will no longer be necessary. As an employee, the university can directly sign an employment contract with a player and set the compensation and boosters can contribute directly to the university to fund that salary.

 

[rqarnold]

So what tax code r u referring to?

https://apps.irs.gov/app/vita/content/globalmedia/teacher/tax_treatment_scholarship_4012.pdf

 

[rqarnold]

It will reduce the impact of NIL only because the pretend game of paying players to make personal appearance, sign autographs, etc so boosters can pay them will no longer be necessary. As an employee, the university can directly sign an employment contract with a player and set the compensation and boosters can contribute directly to the university to fund that salary.

Per the SCOTUS ruling making college athletes employees will change absolutely nothing. Collectives and independent boosters will continue to buy/compensate athletes because they can. Why on earth would they give to the school when they can go straight to the player?

 

[bballcat4]

It will reduce the impact of NIL only because the pretend game of paying players to make personal appearance, sign autographs, etc so boosters can pay them will no longer be necessary. As an employee, the university can directly sign an employment contract with a player and set the compensation and boosters can contribute directly to the university to fund that salary.

It will be interesting to see how it unfolds. There’s no doubt schools will throw huge amounts of $ at existing college players encouraging them to transfer. Would a school (NIL collective) rather throw $ at 4-5* hs recruit or a player like Deon Walker that excelled in the SEC his true freshman yr.

 

[sluggercatfan]

Has greed killed pro sports?
Your imagination is getting the best of you. First off, there are carve-outs in the tax code that treat students and student athletes differently than non-students. You really think Congress would pass, a POTUS would sign a bill to repeal those protections? A provision that probably disproportionately targets minorities??? Not a chance in France.

Apples to oranges...you don't have Title IX and 22+ teams to support. It's college. Not pros.