Taboo Trades
Taboo Trades
The College Employee-Athlete with Marc Edelman
I’m super excited to welcome today’s guest, Marc Edelman – a passionate and influential voice in debates over the rights of college athletes. Marc is a Professor of Law at the Zicklin School of Business, Baruch College, City University of New York, where he writes and teaches on sports law, antitrust law, intellectual property law, and gaming / fantasy sports law. He also serves as the Faculty Athletics Representative for Baruch College.
In addition to his full-time role as a law professor, Professor Edelman is the founder of Edelman Law, where he provides legal consulting and expert witness services to businesses in the commercial sports, entertainment and online gaming industries. Some of Professor Edelman’s recent clients include a Major League Baseball team, the Arena Football League Players Union, and several online fantasy sports providers.
He joins us today to discuss his recent paper, The Collegiate Employee-Athlete, recently published in the University of Illinois Law Review, and co-authored with Michael McCann and John Holden.
Recommended Reading:
Marc Edelman website http://www.marcedelman.com
Edelman, Marc, Michael A. McCann, and John T. Holden. "The collegiate employee-athlete." U. Ill. L. Rev. (2024): 1.
Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick.
SPEAKER_04:I would not want to be the congressperson who my legacy was that I limited the rights of the next generation of low-income, of disproportionately Black workers who are making huge sums of money for the higher education industry. And frankly, Even if you don't believe in those values, if you're Jim Jordan, if you're Tim Cruz, if you're Mitt Romney, I sure as heck, if I'm a Republican, don't want to make my legacy that I support a big system of federal regulation to preempt states from making their own regulations. And I would not want my legacy to be that I deterred traditional capitalism and traditional free market competition. That could and should come back to haunt them in other areas.
SPEAKER_07:Thank you so much. Baruch College, City University of New York, where he writes and teaches on sports law, antitrust law, intellectual property law, and gaming-slash-fantasy sports law. He also serves as the faculty athletics representative for Baruch College. In addition to his full-time role as a law professor, Professor Edelman is the founder of Edelman Law, where he provides legal consulting and expert witness services to businesses in the commercial sports, entertainment, and online gaming industries. Some of Professor Edelman's recent clients include a major league sports team, the Arena Football League Players Union, and several online fantasy sports providers. He joins us today to discuss his recent paper, The Collegiate Employee Athlete, recently published in the University of Illinois Law Review and co-authored with Michael McCann and John Holden.
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SPEAKER_07:So Liv and Alyssa, thanks for joining me today as we're talking to Mark Edelman about his recent paper, The Collegiate Employee Athlete. Can you guys, first of all, just introduce yourselves to our listeners?
SPEAKER_08:Good morning. My name is Olivia King. I'm a 3L here at the University of Virginia School of Law from Melbourne, Florida, and I'm One of the reasons why I was really interested in co-hosting this podcast today is that, you know, I was going to college at a time where this was a particularly hot topic. I knew a lot of student athletes and I also have some relatives who are student athletes or are going to be student athletes. So a lot of direct interest there for me.
SPEAKER_09:Good morning. My name is Alyssa Marshall and I am a 3L from Annandale, Virginia. And I chose to do this podcast because I My fiance was a former athlete at Virginia Tech. And so I have direct experience in terms of kind of listening to his concerns and listening to other student athletes' concerns. And I've always been interested in sports. So I thought this would be a good topic for me to embark on.
SPEAKER_07:Great. Thank you for that. So I'm also looking really forward to Mark's presentation. Is there anything specific that you guys are hoping to get out of the podcast today or learn from Mark or ask Mark or hope that your colleagues ask Mark?
SPEAKER_08:So I would say one of the things that I'm really, really interested in, and I definitely think we'll get some meaningful insight from Mark on this, is that he explores a ton of really important and fascinating concepts in his paper. And I'm really interested to see how his experience, his research, everything that he's learned, how he'll be able to kind of forecast, so to speak, how these issues are going to play out or even how he thinks might be the best way for these issues to be handled in the future.
SPEAKER_09:I, like Liv, similarly want to know what he thinks about the future and the future outlook, but also I'm curious as to how the history has played a role in what we see today and what's going to happen in the future. Specifically, I'm really concerned with the labeling of things because I think how we label things, such as how we label an athlete as a student athlete versus a college student athlete versus... a football club or a volleyball club affects the way athletes are treated and the way things are handled. So I'm specifically wondering the marketing ploys that are going on and how they affect how we see these athletes.
SPEAKER_07:Yeah, I thought that the paper was really a fascinating combination of historical evidence grounding, right? Backward looking. In particular, the development of the phrase and the concept student-athlete and where it came from, but also looking to the future. And we're going to talk to Mark about this, of course. The paper was written before the Johnson v. NCAA case was decided. And since the paper was published, the Third Circuit decided that. And so I'm interested to have him update us a little bit about what the implications of that were. might be from his perspective. Anything else that you guys
SPEAKER_08:are interested in from him? Another one of the topics that's particularly interesting to me is kind of looking at, you know, how with these labels that Alyssa was talking about, depending on how we label what both the indirect and indirect consequences for the athlete specifically as far as their income, if there's anything that comes along that kind of affects their employment status, so to speak, how that might have consequences for the athlete later on.
SPEAKER_09:I think for me, I'm also interested in learning more about the disparities and what drives the disparity between coaches and athletes, and also what I like to call academic tracking and how they're placed into certain classes and certain majors that they possibly may not want to be in. due to the seriousness and the practice time, like the times that they have to be in practice, conflicting with their educational achievements and goals.
SPEAKER_07:Yeah, that's a good point, Alyssa. That's, as you know, because we've talked about it in class, something that has come up in a bunch of the litigation, right? It came up in the Austin case, which we talked about in class, and also in the Johnson case, and presumably in some of the other cases that Mark discusses as well. So I think that's something definitely worth getting his insights on.
SPEAKER_08:Anything else, Liv, from you? Yeah, so another topic that I think will be really interesting to get Mark's insight on is just kind of the differences, if any, that might arise in looking at public universities and colleges versus private universities and colleges, and sort of how he sees some of these differences, where they exist, having kind of disparate impacts on the student-athletes, students who are attending these universities and representing their athletic teams.
SPEAKER_07:Great. Yeah, that's important. And Alyssa?
SPEAKER_09:The last thing that I think that I would want to hear a little bit more about is the funding issues. If athletes are able to be considered employees, how does that affect schools that don't have as much as a budget or as much revenue that are still maybe D1 athletes, D1 football, D1 volleyball, things like that, but don't have as much income or generated to be able to pay these athletes? Are certain schools or certain teams or certain sports put at a detriment to others if something like this happens? And what do we do about that?
SPEAKER_07:Yeah. And Alyssa, you bring up another important point, which is a lot of the discussion, especially after Alston, has been about the antitrust issues. And what's one of the things that's interesting about this paper is its focus on the employment and labor issues that I feel like at least haven't been talked about quite as much. But it's possible that I live in an antitrust silo or something. Well, it's clear that we have a lot to talk to Mark about, and I'm sure we'll not get a chance to discuss all of that with him since we only have a short time with him. But I am definitely looking forward to the discussion, as I know that you guys are. So thank you both for having this discussion with me, and let's join the rest of our colleagues. Well, Mark, I am really super excited that you are here today. I've wanted to actually have you on the show for a while now, and I'm glad that it worked out this year. And in particular, I'm excited to discuss your paper, The Collegiate Employee Athlete, which was just recently published in the Illinois Law Review. And in part, as we were discussing in the roundtable before, I'm interested because especially since the Supreme Court decided Alston, there's been a lot of focus on the antitrust issues. But from my perspective, at least comparatively less discussion of the employment and labor issues. And I My pleasure.
SPEAKER_04:Well, if we look at the college athletes' rights movement broadly, which is the effort to use a legal system to increase equity for college athletes, there are three movements that are all coalescing together. One being the name, image, and likeness movement to allow college athletes to endorse products for money. And that has moved very quickly since 2019 and state bills have gone into place. The second is the antitrust route, which is about lifting restraints that the NCAA member schools collectively impose to prevent compensation for college athletes. And that is moving very quickly as well, especially since the Supreme Court decision in Alston v. NCAA. The third line is a labor law, and it emanates from the question of Are certain college athletes employees? And if so, are they able to unionize in such a way where some bargaining unit, whether it be the colleges or the conferences or even perhaps the NCAA, would garner a mandatory duty to bargain with athletes over hours, wages, and working conditions? Now, this line of movement was forestalled in 2015. The first time a group of college athletes had attempted to unionize was the football players at Northwestern University. And at that time, the National Labor Relations Board, while recognizing that the college athletes in context may have constituted employees, simply chose by option to decline jurisdiction and said, we don't want to address the issue. which is a very rare course by the National Labor Relations Board. They said it would harm labor stability. And that decision really stymied any further efforts for college athletes to organize, unionize, and more importantly, be deemed employees for at least the remainder of the Obama administration and through the President Trump administration. We're now seeing new efforts for college athletes to be deemed employees, as well as efforts by Dartmouth University basketball players amongst other athletes to unionize. In particular, the Third Circuit Court of Appeals decision in Johnson is important to us. That is not a decision about unionizing college athletes, but it's a question as to whether college athletes would classify as employees under employment law for purposes of minimum wage and other statutes. And the U.S. Court of Appeals to the Third Circuit, very much in line with the recent Law Review article that I co-authored with Michael McCann and John Holden, came down with the conclusion that college athletes are not per se prohibited from the definition of employees. which means that the Third Circuit said at least certain college athletes may constitute employees. Again, very much in line with our forthcoming law review article.
SPEAKER_07:Thank you. Great. So I'm going to turn it over now to Liv and Alyssa. They're going to run the show really from here on out. Good
SPEAKER_09:morning, Mark. Thank you so much for being here today with us. My question is, in your paper, you discuss how Walter Byers invented the phrase student-athletes essentially as a marketing ploy. How does Bayer's labeling of things shift the conception of athletes as employees so drastically? It is hard to imagine that the simple shift to the phrase student athletes or from the football club to the college football team dismantled the reality that athletes in college are in an employment relationship. How does such a shift truly cause people to ignore the realities that seem so readily apparent?
SPEAKER_04:That's a wonderful question. Thanks for starting here. So Walter Byers became the first president of a modern NCAA right around the year 1951. And a couple of years later, there was a court ruling that found that an injured college athlete was entitled to workers' compensation. And this created fear amongst the NCAA member schools, that this court decision could lead to a situation where college athletes might be classified as employees for a host of different bases, including workers' compensation. Walter Byers had the goal of trying to make sure that college athletes were seen as students and not as employees, and right around that time coined the term student-athlete, As a term of trying to define what these young men and young women were, to try to garner a definition that they were hoping would come outside of the definition of employee. Did it change anything in reality of the work that the athletes performed? No, not at all. But what I would call it today using modern terminology is regulatory categorization. And we see regulatory categorization used in all types of different settings. This is the opportunity to categorize yourself as something that would be more preferable legally, hoping the moniker would get you better legal treatment. And just as one example of this in a very different place in the sports world, we have companies that are running around now that are offering sports betting sites where they take your bet on how two players will do over under in a sporting contest. but it would be illegal for them to offer prop betting without a license. So they call themselves against the House Daily Fantasy Sports, trying to get the advantage of a more favorable label. So this is really what Byers was doing 75 years earlier. He came up with a label that was separate from employee, that was intended to create an argument, at least, for society to look at these workers differently, differently from how we look at other employees. And then hoping, and in many cases, successfully convincing the courts, because at the end of the day, courts are judges who are just human beings themselves, to look at these classification of people who are doing work more akin to students who are getting a benefit from it than workers who are providing a benefit for an employer.
SPEAKER_09:Thank you so much for your insights. Next, I'm going to hand it to Tanner Stewart.
SPEAKER_01:Hi, Mark. Thank you again so much for joining us here today. My question has to do with the status of the student athletes. So using the three factors that you set out in your paper to determine if college athletes constitute employees, those being meaningful revenue, the public relations goodwill, and the windfall of coaching salaries, it is inevitable that members of some college sports programs, whether in different programs at the same university or in the same program at different universities, will not be qualified as employees while others will. My question is, what status should be afforded to the remainder of college athletes that do not produce meaningful revenue or otherwise do not qualify as employees? Will their commitment to their sport be diminished and such that they're viewed akin to students participating in extracurriculars? Or will the amateur notion of student athletes remain in place for these individuals or teams?
SPEAKER_04:Tanner, that's a great question. Let me give a little bit of backdrop and then I'll get into your question at hand specifically. Under the National Labor Relations Act, the standard to be defined as an employee is you have to be performing work for the benefit of somebody else and under their control. Now, that sounds very much like the standard that you have to constitute an agent under agency law. What the NLRB does not do is does not in a clear way describe what benefit is. So what we attempted to do with this law review article is to try to separate out two things. One being the playing of a sport really recreationally for the participant's own benefit from a situation where you're playing a sport primarily for the benefit of the employer institution being the college. So the three-pronged test that we created and was entirely created by us was meant to explain how reasonably to apply that benefit prong in the context where some people are playing sport really for the benefit of their school and others that are not. So indeed, that would lead to a bifurcated solution where some college athletes are employees and others are not. I believe that even if you ignored the suggestion that Mike, John, and I discussed in the paper for full and just simply apply a more general benefit test, The Third Circuit thus far has done. They have not cited our paper yet. I think you end up in the exact same place where some are and some are not. We just provide a reasonable way of thinking about that definition. Now, your question becomes, what happens to those who are not? Well, there are many individuals on a university campus who engage in either competitive activity or performance activity primarily for their own benefit. even outside the school. So, I mean, we could look at club sports. We could look at intramurals. But we could also look at, take for example, here at UVA Law School. I'm assuming either you or some of your classmates probably compete in moot court. And the students who compete in moot court do it for their own learning. So they travel. A moot court championship would be based outside of the school. and they might have a coach, whether it be a 3L student or a faculty member advise them, and the travel costs are covered, and they're given an opportunity to grow through the activity, but they also maintain a level of autonomy over the activity, and it really is primarily student-based. For those college athletes that do not meet the definition of employee, I think the goal is to make sure that they're continued to be able to get the benefits of physical exercise and healthy competition in a manner that is inclusive of the educational experience where they remain treated the way that you would treat anyone else participating in extracurricular, whether that be mock trial or moot court or any other non-sport activity. Now, the interesting thing in the way that Mike, John, and I explicitly carve out the definition, as well as I think the way that the benefit of control test, even without a definition would be implied, would be as a school or if a school begins to take a certain group of college athletes and begins treating them tangibly differently from the other extracurriculars and begins trying to monetize their work product, Well, then at that point, their classification would change to employee. So from the school perspective, I think it creates, from an ex-ante perspective, an incentive for any college that does not want to treat certain students as employees to make sure that they are not commercially benefiting from those students and are continuing to use this sport opportunity in the same context as we look at a mock trial. or an acapella group, or any other type of extracurriculum.
SPEAKER_08:Thanks so much, Mark, for that insight. And thanks, Tanner, for the wonderful question. I actually have a question that's somewhat similar. Tanner's question and your response kind of covered the idea of addressing these differences in programs, different programs at the same university. Whereas my question is a little more concerned with different athletes in the same program at the same university. So I'd really like to hear from you, Mark. What challenges do you see arising in a world where college athletes are being considered as employees? Some extraneous circumstance occurs, like an athlete's injured and can't play anymore, or they get suspended, either for game-related conduct, outside conduct, grades, or academic reasons. Do these athletes lose employment status? Or what about those who are on the roster, but despite putting in the same amount of practice, whether it be weight training, conditioning, field practices, but essentially are, you know, being paid the same amount for doing what some would argue is significantly different amounts of work?
SPEAKER_04:Olivia, I love the question. And first, just to give a broad answer, and I'll get really into the specifics, is there are some people out there, many in the higher education industry, that don't want any college athletes to be treated as employees. And they don't want to share the revenues of college sports with the labor force that underlies. And they like to come up with a whole series, a parade of horribles that will happen to college athletes if they were to unionize. Now, many of these parade of horribles that they claim will happen, quite to the contrary, already are happening without unionization and are going to be more difficult to continue to happen if there is unionization. So at the present time, no college athletes collectively bargain with their universities. We are still in a system, even though one region of the National Labor Relations Board recognized Dartmouth University basketball players as employees, Dartmouth is fighting that, and no collective bargaining has begun. In the absence of that, subject to existing state laws, and for the most part, colleges can cut an athlete from a team now as they want to. Colleges have broad discretion now. to punish athletes or sanction athletes as their students overall, clearly with that discretion being a little bit more limited in the context of a public school where they have notice in the hearing. Now, if a unit of college athletes were to collectively bargain with their universities, all of a sudden they gain protections that they wouldn't otherwise have. So above and beyond workers' compensation, which would prevail to them, If an athlete is injured, one thing that might be able to be bargained for collectively are additional rights or protections or insurance for the athletes, which, short of unionization, we remain far behind the times in terms of providing adequate health insurance to the athletes. In terms of punishment of an athlete, you know, at this point, we see college athletes at many times sanctioned for both things that we feel deserve to be sanctioned for and others that we perhaps do not. For example, we had an athlete a few years ago at Brigham Young University who was not Mormon, who they admitted to the school for sport, who purportedly engaged in sexual relations, who was thrown off the team right before a big game without notice or hearing or even a discussion. Now, in the context of collective bargaining, you have to negotiate over hours, wages, and working conditions. Implicit within working conditions is a system for punishment and sanction. Now, if you look at Major League Baseball, in Major League Baseball, if a commissioner now seeks to sanction a player for wrongdoing or a team seeks to suspend a player, that player, pursuant to the collective bargaining agreement, enjoys the right to neutral arbitration and the burden is put on the employer to show just cause, meaning that the sanction is reasonably commensurate with the effects. Now, that provides far greater protection in my view, than anything any college athlete receives today, including at a public school. So from my perspective, from any group of college athletes, if we're concerned about ad hoc decisions being made that are detrimental to the athlete's interest or the athlete's health, I cannot imagine an outcome there where a college athlete becomes worse off through the collective bargaining process than they would be without a collective bargaining process and without a union supporting them.
SPEAKER_09:Thank you, co-host, for that wonderful question. Next, I'm going to hand it over to John Henry Vanson.
SPEAKER_00:Thank you so much. Hi, Mark. Thank you for joining us. So I want to just shift gears away from the previous line of questioning to talk about other avenues of reform. So your article focuses on efforts to secure inclusion under federal statutes, yet The NIL era took off due to state action. So how could states shift the debate through legislative action or policy changes? I wonder if advocates or I'm wondering, should advocates consider state level reforms if federal policy changes or litigation in federal court are costly endeavors that some athletes may not want to pursue?
SPEAKER_04:Well, John Henry, thank you for the question. You know, this was one that I said I really wanted to address, and I thought you would find the answer interesting. I say that because the first state bill to allow college athletes to endorse products was the Fair Pay to Play Act that Nancy Skinner put forward in the state of California in 2019. And I think I'm uniquely positioned to speak about this because I was the legal expert that was brought in by Nancy Skinner's team who testified on behalf of that bill on July 8th, 2019. And a lot of that goes back to cartel theory. Now, the NCAA is an economic cartel. What that means is it's 1,000 plus members. Each of the members agree or had agreed not to allow college athletes to receive outside compensation. There's a prisoner's dilemma endemic in every cartel, that every single member is best off if they break from the cartel. So any school secretly would like to pay their athletes because they could economically benefit more by bringing the best athletes and increasing their likelihood to win. But they reached an agreement with all of them together that none of them will pay the athletes because by keeping college athlete compensation at zero, or if you want to look at them in the nicest possible light at the cost of attendance in school, what they're able to do is they all compete on an equal playing field and they all get to keep additional money for themselves. So if you look at the salaries of college coaches and athletic directors and college presidents and ask yourself, why is the college coaching coach making more than the NFL coach? It's because they've been able to maintain a 100-0 revenue share. Now, the truth is when cartels fall, cartels fall fast and cartels fall hard. We've seen that for moments in time at OPEC before some foreign governments got involved and brought open and helped the OPEC reinstate their cartel. We've seen that in other contexts throughout history as cartels have come down. What the California bill, in essence, did said that it would be a violation of California law for any member college in the state of California to deny athletes the right to endorse products for money. In essence, it said if you're an NCAA member in the state of California, we are forcing you out of the cartel. And what happened almost immediately was was other states throughout the country and other schools said, well, the California schools don't have to follow the cartel, and they're competing in the free market, and they're going to win the best college athlete labor in the free market. Well, heck, we don't want to be confined to this cartel arrangement either. We want to be able to compete in the free market. And with Florida moving next, many states within a short period of time said, okay, we are going to pass bills to allow athletes to endorse products for money. And we ended up with a system where the NCAA, in essence, just dropped their regulation because it was unenforceable against half the states. And they didn't want to put half the states and state colleges in different positions from the other half. And we had an incredibly more equitable system out there for the first time where some college athletes started earning money from endorsing products. We began to see college athletes that might have dropped out of school early because they needed funds no longer needing to do so. We began seeing some of the revenues that might go to multi-million dollar coaches to endorse products instead going to them. We're seeing this continuous breaking away from the cartel with other regulatory change that we are seeing on the state level. So we had first Virginia and Tennessee, and now the state of Georgia that have paid class bills that say no college in that state may go along with the aspect of the cartel that prevents direct compensation to their college athletes, which I think is another important step. So when a state acts to increase the rights of college athletes, what tends to happen is it leads to further eradication of the cartel and copycat behavior because at the end of the day, by promoting an element of a free market, once the cartel restraint begins to fall, other states are going to want to provide the same requirements. So just for example here, here in Virginia, now Labor law is complicated, John Henry. From some of what you wrote, I think you understand this, that you have the NLRB, which needs a hook to a private actor. But you also have state labor law that would relate to a public entity if there isn't a joint employer. So take your school for the moment, the University of Virginia. You're a public school. You're a state university. If you're a college athlete in the state of Virginia, unless you're making an argument that you're jointly employed with your conference, but jointly employed with the NCAA, unless you're making that argument, you would be going the public route to try to unionize. So imagine for a moment that Virginia passes a bill that affirmatively says that its revenue-generating college athletes constitute employees and are allowed to bargain over hours, wages, and working conditions under Virginia state law. Now, When that happens, the NCAA may try to stop it, but as much as the colleges that are a part of the NCAA don't want to acknowledge it, they're private institutions. They can't collude to prevent a school from following a law in its state. That is almost certainly an antitrust loser. Now, what's going to happen then is there are going to be surrounding schools that are part of the ACC that are going to say, uh-oh, we might start losing some elite athletes to Virginia because they'll have union benefits. And my guess is you will within days see the state of North Carolina passing a very similar bill to protect the athletes at UNC and NC State. And then we see that restraint again begin to fall as well. So I do think this might have been a longer answer than you expected. And this is why I really wanted to come to this question, at least to the extent that we're dealing with state public universities where the athletes may wish to unionize and may wish to unionize as a single employer bargaining unit only with their public institution, once one state moves and moves in the direction of reform, I think you'll see many other states move in that direction as well.
SPEAKER_07:So, Mark, this is a full-throated defense of regulatory competition, to my mind, and it's the answer I expected you to give. I'm just bringing that up because there is a consistent... movement or belief that's reiterated that Congress needs to jump in and sort of, I don't know, clarify things. And in my view, Congress has rarely stepped in in a way that helps athletes. And so I just wanted to get your take on that.
SPEAKER_04:I'd love to. First, let's just say that if every state was doing what the NCAA leaders and what the NCAA lobbyists wanted them to do, No one would be saying go into Congress. And I also want to expose what's a complete irony here. Typically, and in the Trump era, things are a little bit different. But historically, the Democrats have said, let's deal with things on the national level. Historically, the Republicans have taken the position that states rights. The Republicans have said the federal government should do less and the states should be passing the regulations differently. and we don't need federal mandates on things. So I do have to point out both the irony and the extreme hypocrisy when people like Ted Cruz or Jim Jordan are saying we need a federal bill to limit the rights of college athletes, because someone has to tell me how a federal bill on this goes along with anything else that Ted Cruz or or Paul Rand or Jim Jordan have said in any other which context. Now, that's not meant to be a point on political good versus political bad. That's just a point that in this area, the people that are proposing the federal bill are not proposing what they support in any other instance. Now, I think the NCAA member schools have put together so much money lobbying for a federal bill because in no other setting is might making right anymore. In no other setting is the amount of money that's coming from lobbyists in the university system allowing the NCAA to curtail college athlete rights. The Supreme Court decision in Austin, and I'm proud to say I predicted this one 9-0, they were arguing something that was a front not only to more left-leaning views of antitrust law, they were saying ignore the economics. which goes against the very heart of what the law and economics school, what the Chicago school had said. It's not surprising they lost 9-0. And in terms of labor law cases that are going through the court, the Third Circuit and now Johnson, the Third Circuit didn't say that any college athletes were employees, but they rejected the NCAA's effort to per se disallow. They're losing there too. And they're losing in name, image, and likeness reforms. And they're losing and getting states to restrain the rights of college athletes. So they're throwing a ton of money at this body and they are trying to get Congress to do what no one else will do. Is it needed? I don't think so. In fact, I think that it will be a tremendous mistake for this Congress to get involved and restrain the rights of college athletes. I would not want to be the Congress person who my legacy was that I limited the rights of the next generation of low-income, of disproportionately Black workers who are making huge sums of money for the higher education industry. And frankly, even if you don't believe in those values, if you're Jim Jordan, if you're Tim Cruz, if you're Mitt Romney, I sure as heck, if I'm a Republican, don't want to make my legacy that I support a big system of federal regulation to preempt states from making their own regulations. And I would not want my legacy to be that I deterred traditional capitalism and traditional free market competition. That could and should come back to haunt them in other areas.
SPEAKER_08:Great. Thank you for that. Those are both two excellent questions. And Mark, I appreciate the thoughtful responses you gave to both of them. Our next question comes from Alyssa Lawrence. So I'm going to go ahead and pass it over to her now.
SPEAKER_06:Thank you, Liv, and thank you, Mark, for your answers to these questions so far. My question has to do with the voluntary aspects of athletes' participation in their college sport. In Dawson v. NCAA, the court held that the play of college athletes does not count as work under the Fair Labor Standards Act. However, given that many college athletes who are of lower socioeconomic status generally rely on athletic scholarships as their only opportunity to go to college, it does not seem like they have much of a choice when their only options are don't go to college or come to college and play your sport so long as you remain eligible. Therefore, I would like to know your opinion on the entirely voluntary justification used by the U.S. District Judge Richard Seaborg in Dawson v. NCAA. I also think this question can be taken from the view that going to college could be that athlete's only option to play competitively prior to being eligible to play sports. professionally. So I think there's also the education aspect and the aspect of them being able to play their sport in general. So that's my question.
SPEAKER_04:Oh, first, Alyssa, thank you for the question. Someone I knew was going to ask me the really hard one because it would have been getting into social policy. I'm going to try my best here. I've been lucky that over the course of my life, I've been able to study a wide range of different things. So in addition to having a law degree and undergraduate degree in business, I have a master's degree in sports management. I also have a master's degree in higher education administration. And I've been studying history, and I've been studying a bit about the equal rights movement in this country. It is notable to me that we are really only at the 50-year-or-so mark of certain schools in the South desegregating. And we've moved incredibly quickly from a system where certain large public institutions in the South that are known for their football and basketball have gone from per se disallowing Black students to allowing Black students and allowing low-income students to the school. But now if they want to be there, in essence, they have to be providing this free work labor. And many of them that come are limited to the world of You have to give us the football labor or the basketball labor if you want to get the education. That's very concerning. I, to a very limited extent, disagree with the premise that if you're low income, you have to play a sport to get an education. I teach here at the City University of New York at Baruch College. For those whose families make less than a certain income, they are able to attend college for free. Of course, there's trade-offs to even schools that do that. I mean, first with D3 sports, which is neither here nor there. And this has nothing to do with sports. Second, I'm not sure the education and the opportunities that we're able to afford are the same as when you're collecting tuition from everybody. Third, even in terms of issues like faculty compensation, faculty travel, there are certain limits that the people that run the institutions are able to provide when they're providing this much needed service in return. But it's concerning to me this sense of compulsion. This emerging secondary track of education, which is almost if you want to be there, you have to offer something far more valuable in return. Crystal Beeman has written a lot about education and sport, both in the context of race and also in the context of poverty, and pretty much has concluded that And this was in 2008, a while ago, that the benefits that are offered to revenue-generating college athletes was less than 5% of the average amount of return from their services. So the notion that college athletes across the board should not be considered as employees, I think, is off. I also think we are at a bit of a tipping point in society. I think the tipping point has come as more academics have been able to get their voice out there about college sports, as places like Twitter have made it more easy for those who don't have unique access through public relations or traditional journalist circles to talk about sports. Even a school such as UVA go out of their way and post people like me to speak, which helps get the idea out there. And it seems as if the current generation of judges, the current people sitting on the National Labor Relations Board, and some current legislatures are no longer deferring to the NCAA's depiction of itself. And it's not just the Johnson decision. In very short order over the past few years, we've had the Third Circuit Court of Appeals reject the notion that no college athlete could ever constitute an employee. We have Jennifer Brutso, General Counsel of the NLRB, opening up the possibility that some college athletes are employees. We have Region 1 of the National Labor Relations Board that just came down and found that Dartmouth men's basketball players are employees. And we have the National Labor Relations Board investigating unfair practices with respect to USC as a university defining college athletes as student-athletes, not employees. So I think we're really at the tipping point where Dawson might be outlawed already. I think we've already turned in this direction.
SPEAKER_09:Thank you, Alyssa, for asking that question. And thank you, Mark, for such thoughtful responses. Next, I'm going to hand it to Alexa Rothforth.
SPEAKER_05:Thanks, Alyssa. And thank you, Mark, for being with us today. My question is, how do you think the most recent wave of conference realignment plays into student athletes being seen as legal employees of the universities? With conferences becoming less regionally based, such as Cal and Stanford joining the ACC, student athletes are now traveling across the country for regular season games, making it harder to maintain the student aspect of the student athlete identity. Does this evolving landscape strengthen the argument for their recognition as employees?
SPEAKER_04:Great question, Alexa. In one word, yes. I think we have this irony here that on one hand, we have the lobbyists for colleges going to Congress and continuing to say, these aren't workers, these are student athletes. It's about being students. It's not about revenue. But if you don't listen to their words and listen to their actions, every single one of the actions of big time universities show that it's all about revenue. If you look at these conference realignments, these conference realignments are not to put high academic achieving schools together. They are not about promoting students or promoting education. They're purely about revenue. If you look at the most recent moves, every college that thinks that they can make more revenue by joining a larger conference is trying to do it. Your points about the athletes traveling across country is right on the money. It's bad for football, but it's horrible for basketball. In basketball, men's and women's basketball players play midweek games as well, and they're sent across country. They're denied the opportunity to take classes. We could also look at conference realignment in terms of elongating the season. There was a great article written by two medical doctors who are on faculty at Ivy League schools in the 1890s defending college football, and they said college football is just a small part of the year. It's not even a full semester, and it's done by Thanksgiving. Nothing is done by Thanksgiving now. If you look at the bowl games and you look at the conference championship games, You now have your college football players being put on planes and traveling across country right through the finals, right through past finals, right through the holiday season. And from my perspective, Alexa, you asked it in a non-leading way. I'm not sure if you have a view. But if I'm able to get the intonation that you think that this only furthers the argument that the athletes are operating for the benefit of the school, I wholeheartedly agree. And I find the hypocrisy to be hugely problematic. If these schools really want to try to rein in college sports and really try to make the ideal student-athlete a real thing, instead of running to Congress and saying they are student-athletes, these schools should stop doing things to further make revenue off the labor of these human beings. I like the question. Thank you.
SPEAKER_08:I totally agree. That's an excellent question. And Mark, as always, we appreciate your insight on there. Our next question comes from Laura Habib. So I'm going to go ahead and hand it off to Laura.
SPEAKER_10:Hi, Mark. I'm just curious. If college athletes are categorized as employees, how their salary would be or should be measured and whether the compensation that they are already making in the form of scholarships and educational assistance would play into the determination of their salaries as employees. For example, would athletes at private schools who are already earning more in the context of a higher tuition, would they end up having less cash income or money in their pocket on top of their tuition than the athletes at state schools who are making less in the form of tuition?
SPEAKER_04:Laura, I love this. First, if college athletes are defined as employees for issues such as the Fair Labor Standards Act, they would be entitled to all the other benefits that are required of employees, including minimum wage and so much. In terms of individual salaries, absent the world of collective bargaining, But in a world where the NCAA restraints on compensating college athletes come down, they would be compensated in the exact same way that I'm compensated as a law professor, which in essence is free market and whatever the free market would bear and issues of supply and demand, which is the general rules of the United States. I mean, we are typically a capitalist country. Now, with that said, some employees may vote to unionize. And if you think of unionization, unionization is the choice of certain workers to move away from free market capitals. And when we talk about unionization, we talk something that's really, it's not socialism, but it's not classic capitalism. It's workers come together, and in many cases, it's an agreement of the same compensation for members of the bargaining unit who are similarly situated. So theoretically, You could end up with a bargaining situation where all of the players are all the players of a certain year within the bargaining unit have played the same. It's also possible you could have an outcome such as what the MLBPA, NFLPA, NBPA, and NHLPA negotiate, which is the union negotiates with the employer for a minimum salary, and the individual athlete then retains the right under principles of capitalism to negotiate for a salary above that amount. In the context of unionization, based on what's known as a non-statutory labor exemption, unionized college athletes, at least part of a multi-employer or joint employer bargaining unit, would presumably not have the benefit of antitrust law. And that means amongst the things that could be collectively bargained in theory would be salary caps. Exactly what the NCAA wants to do, and I do not believe they could do legally through the House settlement, they would be able to do in the context of a collective bargaining relationship, which would be imposed salary caps or salary limits as well. So again, that's not an exact answer, but giving an exact answer of what would happen is not feasible because there are so many different scenarios about whether there'll be employment status with or without unionization, what the union structure would look like. But hopefully it's a context of the potential ranges of reasonable outcomes that we might see.
SPEAKER_09:Thank you so much, Laura. And now I'm going to hand it off for our last question with Cyrus Tafty. Hi,
SPEAKER_03:Mark. I think this has been touched on a little bit, but my question is, do you have concerns about fully doing away with the student-athlete paradigm? For example, the NCAA has a rhetorical 20-hour-per-week limit on athletic activity during the season, which is supposed to protect student-athletes' academic commitments. Are you concerned that a move to a more traditional employee-employer relationship would mean losing even this rhetorical respect for the fact that these athletes are also there to get an education?
SPEAKER_04:I'm going to finish up with a tough one, Cyrus, and it's a great question. If you asked me, as someone who cares deeply about higher education, if we were creating the system from scratch of how higher education ideally should work, To me, there would be a complete separation between higher education and commercial athletics. If we were starting from scratch, I think the system that we see in most other countries, not the United States, would be better for higher education. I did my Fulbright Fellowship last year in Australia, and I did a comparison of the system of preparing young athletes to turn professional between the United States and Australia. I like the Australian system. I was looking at players who compete in the Australian professional football league. Many of them come directly from high school. Some of them attend college in the off-season. As part of the CBA, the Collective Bargaining Agreement, all of these professional athletes receive money set aside to allow them to get full college degrees. when they're done. And even those who choose to do college and pro sport at the same time, the two institutions are separated from themselves. At the same time in Australia, there's intramural sport for the most part. There's one group that's trying to change it into something that unfortunately looks more like the US. But anyone who wants to go to college has an opportunity to train and prepare in a sport and compete in intramurals where there is not a large financial incentive. And I think that would be great. Now, here's the reality. I don't think there's any way in the near future that we are going to get these big-time colleges to divest, to sell off, to separate their sports programs from the university. I think that's here to set day. And well before the college athlete rights movement began, and you could put any year on that. I mean, you could put the late 1990s when Rogomi Yuma began speaking out for college athletes. You could say 2010 when O'Bannon was filed. You could say 2019 where the Fair Pay to Play Act went into place. 2021 where the Alston decision is. But I don't think any of those dates become the point in time when commercialization and mass exploitation of college athletes began. I think that happened well before. By the time this movement began, we already had consolidation of athletic confidence. By the time this movement began, you already had college athletes being made to travel across the country for games. By the time this movement began, we already had colleges bring in hundreds of millions of dollars from individual athletic programs. We already had games on national TV. We already had athletic directors making many millions of dollars per year. We already had college coaches making$5 to$10 million per year, more than their athletic directors. We already had a lack of concern about the educational experience of the athlete. We have this quantitatively and qualitatively in research that cross-sects disciplines ranging from race-based papers to papers on sports management, to papers on economics, to papers on sports management, education, and law. My huge support of the college athletes' rights movement and free economic markets for college athletes is not a belief that the ideal way for college sports to operate is for these college athletes to be mass commercialized. But the college athletes have already been mass commercialized. There is no way that the cat's being put back in the bag. And given that we have a system where it's mass commercialized college sports, it's hugely popular in America, and is humongous business, and we're not going to be able to make that go away, how do we ensure that the labor force that's providing the work for this is protected in the same type of way that recognizes John Locke's principle that every man should be able to enjoy in the fruits of their labor, and frankly, every woman should be able to enjoy in the fruits of their labor, and recognizes the basic organization rights that workers should have, And say, if this is a system we have in place, how do we have an equitable system for all people involved? So, if we could start from scratch, do I think the American system and the American model of college sports worked out ideally? Maybe as a fans. I mean, for society, for education, no. But, you know, denying rights to college athletes is not going to remove the commercialization. Commercialization came first. All it's doing is making a system that's not going to very easily go away into one that's more equitable for one of the important stakeholders in that system. And that's why I landed where I did.
SPEAKER_07:Thank you so much, Mark. Liv, Alyssa, any concluding thoughts from you two?
SPEAKER_08:Absolutely. I just wanted to say thank you again, both to Mark and to everyone for your wonderful questions and contributions. I think it was a really thoughtful discussion.
SPEAKER_09:Yes, thank you, Mark, for your time and to everyone else for your thoughtful questions and you being able to answer all of those questions. We really appreciate your time and all of your insights. Thank you. Thank you.
