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College discourse: Athletes as employees

New college models bring challenges, but leaders say we can’t be afraid of the conversation

By Michael Smith
NFLPA Executive Director DeMaurice Smith and Altius Sports Partners CEO Casey Schwab said legislation and litigation are the two most likely scenarios for leading to employee-employer relationships for college athletes and their schools.tony florez

College athletes are on a likely path toward becoming employees of the university — the Supreme Court and the National Labor Relations Board already have declared it at some level. That has left college leaders wondering what this new model will look like and what they should do next.

The specter of employee-employer relationships in college athletics is complicated by ongoing legal cases, concerns over the impact on nonrevenue-producing sports and changes to the fundamental student-athlete experience.

These changes will eventually come home to roost on campuses across the country, which is where the conversations about athletes as employees need to be happening now, said DeMaurice Smith, NFLPA executive director and sports labor expert, not after it is legislated into existence.

“We’re afraid of the conversation, and we shouldn’t be,” Smith said. “We should embrace this opportunity to have the conversation.”

“Because it’s coming,” Altius Sports Partners CEO Casey Schwab added. “That’s just the reality.”

There’s also a revenue component that could be unlocked across college athletics in addition to the series of one-off name, image and likeness deals that dot the landscape now.

“There is a way to grow the overall [revenue] pie while also recognizing the rights of athletes,” said Smith, who has been leading the players union since 2009. “I don’t think you have to choose between the strict world of employees and the strict world of student athletes.”

There are numerous examples of students working and earning wages all across campus, although they’re not part of a multibillion-dollar enterprise like college athletics. But the athletes potentially could maintain their status as students while also collectively bargaining for salary, benefits and working conditions at the school or conference level.

Smith and Schwab, who formerly worked together at the NFLPA, shared their vision for the future of college athletes this month at the Learfield Intercollegiate Athletics Forum, where NIL dominated two days of discussion among conference commissioners, athletic directors and other stakeholders.

Tom McMillen, CEO and president of Lead1, the association that represents 130 FBS athletic directors, said there are complications that come with any radical new model.

The questions come in the form of Title IX concerns, reaching some kind of consensus among college leaders and the always prevalent lawsuits working against the NCAA.

“The more you disconnect from the academy, the tougher the road gets because the only thing distinguishing college from the pros is the education,” McMillen said.

The concept of classifying student athletes as employees came to a head this year because of the rising volume of NIL deals and two significant developments.

First, the NCAA lost its case against Alston in the Supreme Court in June. In a concurring opinion, Justice Brett Kavanaugh wrote: “The NCAA’s business model would be flatly illegal in almost any other industry in America.” Kavanaugh went on to recommend a method of collective bargaining to provide athletes with “a fairer share of revenue.”

Second, NLRB General Counsel Jennifer Abruzzo said in September that players at academic institutions are employees, and that will be her position in future cases.

Ole Miss coach Lane Kiffin last week discussed how college athletes are being promised a lot already through NIL. “You’re in free agency that, there are no contracts.”getty images

Two other ongoing legal cases that could affect how athletes are classified remain on the horizon. Plaintiffs — three male and three female former college athletes —  in Johnson v. NCAA argue that sports interfered with their academics and that they should be paid wages for time spent on their sport.

House v. NCAA, which seeks to remove any limits on NIL compensation, isn’t scheduled for trial until 2024. Both lawsuits have the potential to disrupt the collegiate model and both have withstood motions to dismiss.

The idea of the NCAA clinging to its amateur model, especially now as NIL money clearly serves as an inducement in recruiting, seems like a losing proposition.

These disruptive forces continue to shift the NCAA model into some kind of unrecognizable form that’s quickly distancing itself from the NCAA of just a few years ago.

Smith and Schwab ticked off a multitude of scenarios that could nudge the enterprise toward employee-employer relationships — litigation and legislation being the two most likely.

“Or,” Smith said, “colleges and universities could decide to set it up themselves. … Why would anybody believe it’s better to hold your breath every day waiting to see which way Congress or a judge reacts. Shouldn’t we be asking how we should protect the rights of both groups? I believe it’s through bargaining and coming up with a world that’s optimal for everyone.

“Why can’t we have athletes at a school or athletes at a conference form a group that sits down at the table with management, say, university officials.”

As soon as one conference goes down that path, the rest will follow, Smith predicted.

There’s also a revenue benefit that needs to be explored by aggregating player rights like the professional leagues do with their players. Aggregating player marketing rights could happen at the school, conference or national level and mitigate some of those concerns about professionalizing the enterprise.

“The pie can get bigger as long as the rights holders on both sides come together with a common interest,” said Schwab, formerly vice president of business and legal affairs at NFL Players Inc., the licensing and marketing arm of the players association. Schwab left in 2020 to launch Altius Sports Partners, an NIL advisory firm.

Schwab, who regularly meets with college officials as he looks to grow his business, said some of the conversations he’s having remind him of the NFL’s legal battle against sports gambling that started almost a decade ago. Now the NFL has a franchise in Las Vegas, a Super Bowl headed there and two sportsbook partners.

Those talks started with protecting the game and matriculated to monetizing it, Schwab said.

“I understand that every AD, commissioner and president wants amateurism to be preserved, and they don’t want athletes deemed as employees,” Schwab said. “But if that does happen, what is the strategy? They need to be planning for that. One, how do you protect the game? Two, how are you going to monetize it?”

SEC Commissioner Greg Sankey said he could not envision a for-profit college football entity because it would be too detached from the academic component.

“I did not see it at this point because of the attachment to education,” he said. “The academy creates some complexities.”

Student athlete advisory committees at the NCAA, conference and school levels provide athletes with a voice and a platform for feedback from the 31 members of the Division I committee. Only one athlete sits on the 41-person Division I Council, the principal rules-making body.

That’s still a long way from collective bargaining for working conditions or generating more income.

At the NFLPA, players get paid for their marketing rights as part of their CBA agreement. It also includes a revenue distribution back to the players from jersey sales, video games and other group efforts.

That kind of arrangement at the collegiate level could be characterized as a sort of College Players Inc., which would operate to maximize revenue for the good of the group as opposed to so many one-off NIL deals.

“In this incremental, step-by-step process we’re in with college athletics that started with NIL, this is the direction we’re headed,” Schwab said. 

Another fundamental piece of the equation is maintaining the educational component.

“Every campus is different, but the student part of ‘student athlete’ is important on every single campus,” Schwab said. “As soon as you make this all about entertainment instead of education, that’s going to make the hair stand up on some folks. Some will live with it; some will say that they’re not participating in that. That’s the pushback we hear the most.” 

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