Potential issues with the employee model

[NU_Alum]

Bigger issue is for the athletes themselves.

Now with NIL each athlete has the right to individual negotiations for NIL.

As "employees" and the addition of potential "unions" each individual will have to conform to what the group gets negotiated for them.

With of course a 10% rake off for the "Big Guy" (Union).....

Finding out that they are "employees" is not good news for college athletes, now that NIL is so wide open and with the Transfer Portal in place.

Oh, by the way, can "employees" just "leave" their place of "employment", i.e. that is how does this effect the Transfer Portal use? Inquiring minds want to know.........

It depends on how everything is set up. Right now it appears that the prevailing entity setup will be that the athletes are employees of the university and are subcontracted out to the football team (which will be a university affiliated entity). The athletes will likely have a union contract with the university. I'm guessing that contract will allow for each student to negotiate their own NIL deals but with some caveats. Nebraska athletes won't be able to wear Nike (for example).

To the second part, it's possible but unknown right now if the athletes can just up and leave and join another school the next day (like a typical employee can do). Football and probably men's basketball will be out of the NCAA. They'll have rules and those rules will have to be included in the union contracts. I don't see many issues on that front, it will "mirror" NFL transfer type rules.

 

[HuskerSuperGenius]

It depends on how everything is set up. Right now it appears that the prevailing entity setup will be that the athletes are employees of the university and are subcontracted out to the football team (which will be a university affiliated entity). The athletes will likely have a union contract with the university. I'm guessing that contract will allow for each student to negotiate their own NIL deals but with some caveats. Nebraska athletes won't be able to wear Nike (for example).

To the second part, it's possible but unknown right now if the athletes can just up and leave and join another school the next day (like a typical employee can do). Football and probably men's basketball will be out of the NCAA. They'll have rules and those rules will have to be included in the union contracts. I don't see many issues on that front, it will "mirror" NFL transfer type rules.

Regardless, all of this is more "things" that the athlete has to deal with that they did not have to before being called an "employee" for little to no benefit.

Let's face it, the "employee" idea was created to help the athlete but became unnecessary with the rapid unfolding of unlimited NIL and Transfer Portal which no one expected to occur.

Some one should have withdrawn the NLRB proposal since it becomes a lesser way of "paying" athletes compared to NIL, and this was the sole reason the "employee" ploy was advanced.

If smart. athletes will just not take this avenue ("employee") up and continue with what they already have....

 

[NU_Alum]

Regardless, all of this is more "things" that the athlete has to deal with that they did not have to before being called an "employee" for little to no benefit.

Let's face it, the "employee" idea was created to help the athlete but became unnecessary with the rapid unfolding of unlimited NIL and Transfer Portal which no one expected to occur.

Some one should have withdrawn the NLRB proposal since it becomes a lesser way of "paying" athletes compared to NIL, and this was the sole reason the "employee" ploy was advanced.

If smart. athletes will just not take this avenue ("employee") up and continue with what they already have....

I do agree that I'm not sure the athletes are thinking this one through. The NLRB is highly political and if a new president is elected this year the make up of the top positions will change. That change could lead to an undoing of any NLRB positions as they currently stand.

That's not a political post, it's just a reality as it happens with every change in president. The NLRB's interpretations change from administration to administration.

Now, there are some (1 maybe?) court cases pending that would make any NLRB determination effectively moot.

I don't happen to fully buy into the "they're employees" analysis. Given the nature of the relationship between students and their schools, I'm not sure how playing a sport makes you an employee. I think it's more about the money. There is so much coming in that the "fairness" of it comes into play when it really shouldn't.

All of the ramifications of going to an employee model aren't/can't be known yet but I'm willing to bet it hurts FAR more athletes than it helps.

 

[NorthwoodHusker]

In the super hyper competitive world of cfb, the needs for unions is ignorant. They need do nothing but collect their pay

 

[KSBV]

At what point do we just sever the connection between College Football (and maybe Basketball) and the universities. What exists today really does not mirror what was contemplated when it all started.

 

[NorthwoodHusker]

At what point do we just sever the connection between College Football (and maybe Basketball) and the universities. What exists today really does not mirror what was contemplated when it all started.

Did you just type this? No ink, paper?
I get it, but it is now what it is, things change.

 

[HuskerBred]

I do agree that I'm not sure the athletes are thinking this one through. The NLRB is highly political and if a new president is elected this year the make up of the top positions will change. That change could lead to an undoing of any NLRB positions as they currently stand.

That's not a political post, it's just a reality as it happens with every change in president. The NLRB's interpretations change from administration to administration.

Now, there are some (1 maybe?) court cases pending that would make any NLRB determination effectively moot.

I don't happen to fully buy into the "they're employees" analysis. Given the nature of the relationship between students and their schools, I'm not sure how playing a sport makes you an employee. I think it's more about the money. There is so much coming in that the "fairness" of it comes into play when it really shouldn't.

All of the ramifications of going to an employee model aren't/can't be known yet but I'm willing to bet it hurts FAR more athletes than it helps.

A few thoughts here:

1) The employee” determination is a fairly solid and easy decision for the NLRB, which doesn’t really care about anything other than the labor universe. This is dramatically oversimplified, but under labor law framework, you are deemed an employee if you receive “compensation” and you are “controlled” by your employer. That’s not 100% right but it’s mostly right. Remember, the NLRB is solely sorting through issues about labor and employment. Not civil rights. Not Constitutional rights. Not really equity or fairness or anything like that. Just labor/employment issues.
2) The Dartmouth basketball players are an interesting test case because they don’t receive athletic scholarships (as Ivy League athletes they are 100% need-based scholarship recipients). The decision stated that most of them pay at least 40K of the 80K total cost/year and none of them receive any NIL funds. So that’s pretty good incentive to seek some additional compensation.
3) Compensation can be minimal. In the Dartmouth decision it included gear, early decision consideration, and some other stuff. No schollie. No NIL, at least with this particular group of players. Control is minimal too. Practice issues. Off-season obligations. It’s all slightly more complicated than that but you get the picture. The point is that it’s a very low bar to be considered an employee.
4) So if I’m an athlete who is on a team, any team, scholarship or not, why wouldn’t I consider this approach. Maybe I don’t get NIL. Maybe I’m grinding away and will never start or play much. Maybe I want to be compensated (other than the scholarship and minimal stipend) for all the hundreds of hours I put into whatever program at whatever school. Maybe it probably feels like a job most of the time. Especially if I’m injured. If I can’t take classes I want. If I can’t do other stuff that other students do.
5) I don’t know how all this is going to play out. There are a ton of overlapping legal issues, including jurisdictional and standing differences among the various schools and athletes. And gender. And race. Blah. Blah. But imho until all these young people (and I’m not talking the high-dollar NIL recipients) feel like they’re getting some of the billions none of this is going away or getting “fixed” any time soon. And it shouldn’t. I think the whole point, whether college officials, fans, tv and shoe execs, and all the other “adults” agree, is that college athletes are 100% exploited by the system. It is by definition exploitation. Imagine this scenario: your kid gets an internship at a tech company. No pay. Free housing. Credits toward a degree. A little pizza money. But hard work. Physical injury and long-term disability likely. And, oh yeah, every year the tech company makes millions off the interns and doesn’t share a dime.
6) I get the value of a college degree. But that prize has been devalued. It used to be that a kid from the city or the farm had very few choices and a scholarship was a life-changer. GI Bill. Sports. High academics. That was it for kids without resources. It had extraordinary value. That’s less and less the situation. can make fancy coffee for a few hours a day, and the company will send me to college online almost for free. If you can’t find a way to a college degree in 2024, you don’t want it. Full stop.

 

[NU_Alum]

A few thoughts here:

1) The employee” determination is a fairly solid and easy decision for the NLRB, which doesn’t really care about anything other than the labor universe. This is dramatically oversimplified, but under labor law framework, you are deemed an employee if you receive “compensation” and you are “controlled” by your employer. That’s not 100% right but it’s mostly right. Remember, the NLRB is solely sorting through issues about labor and employment. Not civil rights. Not Constitutional rights. Not really equity or fairness or anything like that. Just labor/employment issues.
2) The Dartmouth basketball players are an interesting test case because they don’t receive athletic scholarships (as Ivy League athletes they are 100% need-based scholarship recipients). The decision stated that most of them pay at least 40K of the 80K total cost/year and none of them receive any NIL funds. So that’s pretty good incentive to seek some additional compensation.
3) Compensation can be minimal. In the Dartmouth decision it included gear, early decision consideration, and some other stuff. No schollie. No NIL, at least with this particular group of players. Control is minimal too. Practice issues. Off-season obligations. It’s all slightly more complicated than that but you get the picture. The point is that it’s a very low bar to be considered an employee.
4) So if I’m an athlete who is on a team, any team, scholarship or not, why wouldn’t I consider this approach. Maybe I don’t get NIL. Maybe I’m grinding away and will never start or play much. Maybe I want to be compensated (other than the scholarship and minimal stipend) for all the hundreds of hours I put into whatever program at whatever school. Maybe it probably feels like a job most of the time. Especially if I’m injured. If I can’t take classes I want. If I can’t do other stuff that other students do.
5) I don’t know how all this is going to play out. There are a ton of overlapping legal issues, including jurisdictional and standing differences among the various schools and athletes. And gender. And race. Blah. Blah. But imho until all these young people (and I’m not talking the high-dollar NIL recipients) feel like they’re getting some of the billions none of this is going away or getting “fixed” any time soon. And it shouldn’t. I think the whole point, whether college officials, fans, tv and shoe execs, and all the other “adults” agree, is that college athletes are 100% exploited by the system. It is by definition exploitation. Imagine this scenario: your kid gets an internship at a tech company. No pay. Free housing. Credits toward a degree. A little pizza money. But hard work. Physical injury and long-term disability likely. And, oh yeah, every year the tech company makes millions off the interns and doesn’t share a dime.
6) I get the value of a college degree. But that prize has been devalued. It used to be that a kid from the city or the farm had very few choices and a scholarship was a life-changer. GI Bill. Sports. High academics. That was it for kids without resources. It had extraordinary value. That’s less and less the situation. can make fancy coffee for a few hours a day, and the company will send me to college online almost for free. If you can’t find a way to a college degree in 2024, you don’t want it. Full stop.

Under your definition though every kid that's in a club is an employee. They typically get uniforms, balls (or whatever other equipment), paid for refs, use of facilities, etc... The control question is more about being an independent contractor or employee and if an employee, if they're exempt or non-exempt.

My initial thought is that they're not IC or employees, they're students attending a school and playing a sport.

Here is the 2021 commissioner's reasoning:

“Players at Academic Institutions perform services for institutions in return for compensation and subject to their control. Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment,” said General Counsel Abruzzo. “My intent in issuing this memo is to help educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, about the legal position that I will be taking regarding employee status and misclassification in appropriate cases.”

NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions

Today, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices providing updated guidance regarding her position that certain Players at Academic Institutions (sometimes referred to as student athletes), are employees under the National Labor...

www.nlrb.gov

I'm still not 100% convinced that the athletes are employees. She expanded the definition dramatically (and it could be undone by the next commissioner who is a political appointee). Keep in mind, Congress could "simply" add athletes into the original law under the exceptions to the definition of employee and this is all moot.

I get that a college degree isn't worth what it was back in 1980, but it's still something and it's still valuable. What happens if that degree gets more valuable in the future (ie. schools go back to being more selective) or what if a kid gets a JD or PHD in addition to their BA/BS?

I don't know that I agree that kids are exploited, they are getting more than a little something in return. The degree, 4 years of living and food and medical care. That's easily over $100k without the degree. For sure the school makes out better, no doubt, unless a kid gets hurt early on and stays on scholarship for 4 years but doesn't play. Can the school just cut those kids now?

There is so much that's going to be figured out "on the fly" going forward and I have a feeling most of it isn't going to benefit most student athletes as they exist today.

 

[NorthwoodHusker]

A few thoughts here:

1) The employee” determination is a fairly solid and easy decision for the NLRB, which doesn’t really care about anything other than the labor universe. This is dramatically oversimplified, but under labor law framework, you are deemed an employee if you receive “compensation” and you are “controlled” by your employer. That’s not 100% right but it’s mostly right. Remember, the NLRB is solely sorting through issues about labor and employment. Not civil rights. Not Constitutional rights. Not really equity or fairness or anything like that. Just labor/employment issues.
2) The Dartmouth basketball players are an interesting test case because they don’t receive athletic scholarships (as Ivy League athletes they are 100% need-based scholarship recipients). The decision stated that most of them pay at least 40K of the 80K total cost/year and none of them receive any NIL funds. So that’s pretty good incentive to seek some additional compensation.
3) Compensation can be minimal. In the Dartmouth decision it included gear, early decision consideration, and some other stuff. No schollie. No NIL, at least with this particular group of players. Control is minimal too. Practice issues. Off-season obligations. It’s all slightly more complicated than that but you get the picture. The point is that it’s a very low bar to be considered an employee.
4) So if I’m an athlete who is on a team, any team, scholarship or not, why wouldn’t I consider this approach. Maybe I don’t get NIL. Maybe I’m grinding away and will never start or play much. Maybe I want to be compensated (other than the scholarship and minimal stipend) for all the hundreds of hours I put into whatever program at whatever school. Maybe it probably feels like a job most of the time. Especially if I’m injured. If I can’t take classes I want. If I can’t do other stuff that other students do.
5) I don’t know how all this is going to play out. There are a ton of overlapping legal issues, including jurisdictional and standing differences among the various schools and athletes. And gender. And race. Blah. Blah. But imho until all these young people (and I’m not talking the high-dollar NIL recipients) feel like they’re getting some of the billions none of this is going away or getting “fixed” any time soon. And it shouldn’t. I think the whole point, whether college officials, fans, tv and shoe execs, and all the other “adults” agree, is that college athletes are 100% exploited by the system. It is by definition exploitation. Imagine this scenario: your kid gets an internship at a tech company. No pay. Free housing. Credits toward a degree. A little pizza money. But hard work. Physical injury and long-term disability likely. And, oh yeah, every year the tech company makes millions off the interns and doesn’t share a dime.
6) I get the value of a college degree. But that prize has been devalued. It used to be that a kid from the city or the farm had very few choices and a scholarship was a life-changer. GI Bill. Sports. High academics. That was it for kids without resources. It had extraordinary value. That’s less and less the situation. can make fancy coffee for a few hours a day, and the company will send me to college online almost for free. If you can’t find a way to a college degree in 2024, you don’t want it. Full stop.

Sounds to me Ivy League pride is in the way of sports teams.
Its creating this scenario. No NIL? Really? This then does leave only room for a union.

 

[HuskerBred]

Sounds to me Ivy League pride is in the way of sports teams.
Its creating this scenario. No NIL? Really? This then does leave only room for a union.

Not clear to me that they don’t have NIL because they aren’t allowed. Doubt it. I think it’s because they can’t get anyone to pay them. And not sure about the “pride” thing. It’s a ton of cash to go to school there, so I understand why they want to pursue this. FWIW, walk-on football players at Northwestern were the first athletes to go down this road, I think. A few years ago. Remember too that only private school athletes can take this up with the NLRB. Public state school kids need to pursue other channels.

 

[NorthwoodHusker]

Not clear to me that they don’t have NIL because they aren’t allowed. Doubt it. I think it’s because they can’t get anyone to pay them. And not sure about the “pride” thing. It’s a ton of cash to go to school there, so I understand why they want to pursue this. FWIW, walk-on football players at Northwestern were the first athletes to go down this road, I think. A few years ago. Remember too that only private school athletes can take this up with the NLRB. Public state school kids need to pursue other channels.

Not allowing NIL leaves them only some form of unionization it would seem to me
As to the pride part, outsiders investing in their sports says a lot

 

[HuskerBred]

I

Under your definition though every kid that's in a club is an employee. They typically get uniforms, balls (or whatever other equipment), paid for refs, use of facilities, etc... The control question is more about being an independent contractor or employee and if an employee, if they're exempt or non-exempt.

My initial thought is that they're not IC or employees, they're students attending a school and playing a sport.

Here is the 2021 commissioner's reasoning:

NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions

Today, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices providing updated guidance regarding her position that certain Players at Academic Institutions (sometimes referred to as student athletes), are employees under the National Labor...

www.nlrb.gov

I'm still not 100% convinced that the athletes are employees. She expanded the definition dramatically (and it could be undone by the next commissioner who is a political appointee). Keep in mind, Congress could "simply" add athletes into the original law under the exceptions to the definition of employee and this is all moot.

I get that a college degree isn't worth what it was back in 1980, but it's still something and it's still valuable. What happens if that degree gets more valuable in the future (ie. schools go back to being more selective) or what if a kid gets a JD or PHD in addition to their BA/BS?

I don't know that I agree that kids are exploited, they are getting more than a little something in return. The degree, 4 years of living and food and medical care. That's easily over $100k without the degree. For sure the school makes out better, no doubt, unless a kid gets hurt early on and stays on scholarship for 4 years but doesn't play. Can the school just cut those kids now?

There is so much that's going to be figured out "on the fly" going forward and I have a feeling most of it isn't going to benefit most student athletes as they exist today.

The Dartmouth decision drew the line at clubs because of the lack of control, at least as I understand it. And the degree of benefit. Typically clubs don’t function without fundraising or some contribution by participants. And the Northwestern decision focused a lot on the fact the players were voluntarily walking on. But it’s a slippery slope. Obviously.

I dont like the student-athlete = employee determination either. At all. And it absolutely can change over time, or even from adjudicator to adjudicator. I’m just saying that in the private school, non-scholarship environment it’s a path. These kids only get what the “need” formula allows. Far short of tuition and room and board, typically. They can go elsewhere but that’s a whole other discussion. Really the bottom line message to me is that the student-athletes aren’t happy with their take — and that’s only going to get “worse” from the standpoint of them wanting more and more as the stakes get higher. NIL. All of it.

My point is that It’s a trend, and it’s getting away from the schools. Creating even more of a cutthroat environment, which ultimately will ruin the sport(s). Either the schools collectively start coming together and getting ahead of it (and generally getting their crap together instead of constantly reacting to everything) or get out of the sports business. It’s ridiculous. They are constantly surprised by these things — WSU and OSU with PAC-12? What did they think would happen? If I’m Iowa State or Mississippi State I’m looking 10 years ahead and pissing myself. Looking out for yourself only goes so far before it destroys the competition and leads to a true quasi-pro league.

And… Unfortunately with some of the new, “less rigorous” colleges popping up the value of a degree likely won’t go anywhere other than down. Don’t like that either.

 

[NU_Alum]

Not clear to me that they don’t have NIL because they aren’t allowed. Doubt it. I think it’s because they can’t get anyone to pay them. And not sure about the “pride” thing. It’s a ton of cash to go to school there, so I understand why they want to pursue this. FWIW, walk-on football players at Northwestern were the first athletes to go down this road, I think. A few years ago. Remember too that only private school athletes can take this up with the NLRB. Public state school kids need to pursue other channels.

IIRC the NLRB at that time (Northwestern filing) refused to rule on the issue. I'm assuming that was before 2020.

 

[HuskerBred]

NLRB rules Northwestern players can't unionize

The National Labor Relations Board on Monday dismissed a petition by Northwestern football players who claimed they were university employees and wanted to unionize.

www.espn.com

Here’s a link, if it works. I’ll stop popping off about all this — I haven’t practiced any labor law in almost 30 years, so I only know what I read in the decisions. I will suggest it is good to read the decisions because it speaks to the times and the mindset. I worry about trends — NIL, Dartmouth, Pac12, Florida State, etc. I don’t think college presidents are equipped to handle these changes. I also think most ADs are over their heads. The NCAA is not working as an umbrella organization. And that leaves Congress, which is probably not a good answer. I’ll stick to being excited about Tony White’s defense and all the great effort/actions by HCMR! GBR!

 

[NU_Alum]

NLRB rules Northwestern players can't unionize

The National Labor Relations Board on Monday dismissed a petition by Northwestern football players who claimed they were university employees and wanted to unionize.

www.espn.com

Here’s a link, if it works. I’ll stop popping off about all this — I haven’t practiced any labor law in almost 30 years, so I only know what I read in the decisions. I will suggest it is good to read the decisions because it speaks to the times and the mindset. I worry about trends — NIL, Dartmouth, Pac12, Florida State, etc. I don’t think college presidents are equipped to handle these changes. I also think most ADs are over their heads. The NCAA is not working as an umbrella organization. And that leaves Congress, which is probably not a good answer. I’ll stick to being excited about Tony White’s defense and all the great effort/actions by HCMR! GBR!

I agree that no one is remotely ready or likely able to handle the situations that are coming. The Pac12 is done. I think the ACC is done along with the Big 12. Those schools aren't going to have the money to pay for 100's of new employees.

I think the B1G and SEC will break off from the NCAA for football/basketball. Where that leads? Who knows.