Sports Law Blog
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Thursday, September 21, 2017
Decision Time in College Athletics: Are College Athletes Students or Employees?
Deservedly, college athletics has been under assault the past several years. Most of the criticism has been directed at calling out the hypocrisy of this multi-billion-dollar industry in allowing all associated with it the opportunity to extract every penny they can, except the college athletes producing the product.
Lawsuits, boycotts, unionization efforts, and advocacy groups call for greater compensation—be it salaried or merely the rights of athletes to control their own names, images, and likenesses. And while the compensation issue isn’t going away anytime soon (see O’Bannon v NCAA and Jenkins v NCAA) another more disturbing debate is now the topic du jour this year—NCAA transfer rules. The spotlight is on these rules as word leaked that the NCAA is considering modifying the existing guidelines for transfers.
The NCAA places significant restrictions on the ability of college athletes to move from school to school. Once a student signs a National Letter of Intent to attend an institution, they are bound to that school. This contract of adhesion is deeply flawed for the students—who can neither negotiate the terms nor, for the most part, compete without signing one. And while this commitment is something schools and coaches who enforce these contracts hold in high regard, it is not reciprocal. Coaches make promises to recruits about their loyalty to an institution all the time and then, even under contract, jump to other schools deemed to offer better career prospects.
There is no shame in moving from one opportunity to another—we all do it. More money, higher profile, it’s part of the “American dream.” However, if a student wants to leave one school for another, coaches and college administrators are swift and vocal in their claims of betrayal and breach of contract. And, let’s be clear, in the end the vitriol against students’ transferring is based not on some version of loyalty but on the ability of management to control labor’s movements.
In business, there’s a simple way to ensure employees don’t move around in ways that destabilize a company; employment contracts include “non-compete” clauses all the time. “But wait” you say, “college athletes (at least according to the NLRB’s flawed decision) aren’t employees.” EXACTLY, that’s the point. If college athletes aren’t employees then they should be able to transfer without restrictions. If they are employees, then they have a right to unionize and negotiate better terms of employment.
The NCAA’s response is always “but we’re maintain the time-honored tradition of amateurism.” However, other than clinging to this antiquated definition of amateurism which the evolution of college athletics has demolished, there is no logical rationale for this dichotomy. Either freedom of movement should be allowed, or these restrictions must be balanced with some other benefit—like compensation in some form.
Finally, what makes the debate all the most duplicitous is that the most ardent advocates against “free agency” for college athletes are coaches who, without fail, jump from opportunity to opportunity leaving students, fans, and others behind to redefine their version of loyalty.