14 Wake Forest L. Rev. Online 47

Nick Tremps


Over the past few decades, one particular legal issue has permeated throughout collegiate athletics. At the forefront of every collegiate student-athlete’s mind in recent years is the question: “should I be getting paid for this?” Or, at the very least, should they be receiving more rights and protections other than financial aid and some athletic gear to proudly wear around campus? At first blush, the answer to these questions for all collegiate student-athletes might appear to be yes. Such athletes spend countless hours training, practicing, and competing in their respective sports, all while balancing a full academic schedule and a social life—assuming they are fortunate enough to have any remaining time. Because these universities undeniably receive, at a minimum, nationwide recognition and increased tuition dollars as a result, student-athletes have begun to ask whether compensation or additional protections are warranted. Relevant to this inquiry is the National Labor Relations Act (the “NLRA” or the “Act”), one possible avenue for receiving such compensation or protections. However, this Note argues that the vast majority of collegiate student-athletes should not be able to enjoy the protections afforded by the NLRA.

The recent movement towards classifying student-athletes as “employees” of their respective institutions has its origins in Northwestern University & College Athletes Players Association.[1] In an issue of first impression for the National Labor Relations Board (the “NLRB” or the “Board”), a group of Northwestern University football players sought to unionize under the NLRA, basing their claim under the statutory definition of “employee” in § 152(3) of the Act.[2] While the Regional Director for Region 13 initially concluded that the athletes were employees within the meaning of Section 152(3) of the Act based in part on substantial findings that these athletes bring in significant revenue for the university,[3] the Board ultimately declined to exercise jurisdiction.[4] Thus, the Board left open the question of whether collegiate student-athletes were employees under the Act.

On September 29, 2021, General Counsel Jennifer Abruzzo of the NLRB issued Memorandum GC 21-08, which explains her prosecutorial position that “certain Players at Academic Institutions [are to be] employees under the Act.”[5] Specifically, the memorandum provides that “scholarship football players at private colleges and universities, or other similarly situated Players at Academic Institutions, [should be] employees under the Act.”[6] General Counsel Abruzzo further explained that she may pursue violations of § 158(a)(1) where an institution or employer misclassifies these students as “student-athletes.”[7] Importantly, Memorandum GC 21-08 reinstated NLRB GC Memorandum 17-01, which elaborated on Northwestern University and two other cases that further support the position that student-athletes are “employees” within the meaning of the Act.[8]

Memorandum GC 21-08 sets the stage for student-athletes from a variety of different athletic programs to claim “employee” status under the NLRA. However, the question remains open as to which student-athletes are “similarly situated” to the plaintiffs in Northwestern University.

In Part I, this Note discusses a brief history of the National Collegiate Athletic Association (the “NCAA”) and how the NCAA’s focus, purpose, and oversight have transitioned over time. Part II then discusses the statutory definitions of “employee” under federal law in relation to its applicability to collegiate student-athletes who compete in non-revenue-generating athletic programs at private universities. Specifically, it focuses on the NLRA and the protections that proponents argue should be afforded to these athletes. Part III proceeds by discussing recent developments in case law regarding student-athletes as “employees” under federal statutes, with a particular focus on cases discussing the NLRA. Importantly, Part IV outlines Memorandum 21-08, in which the General Counsel of the NLRB explains that her prosecutorial position moving forward is that collegiate football players at private universities, as well as other similarly situated players, are “employees” within the meaning of the Act. Finally, in Part V and VI, this Note discusses how revenue-generating student-athletes will inevitably be classified as “employees” under the NLRA and concludes that non-revenue-generating student-athletes should not be afforded the same classification because they are not able to satisfy two elements under the common-law test employed by the NLRB: that is, they neither “perform a service” for their respective institutions nor do they receive payment or compensation.

I. Overview of the NCAA

More than a century ago, the Intercollegiate Athletic Association of the United States was formed to address the pervasive injuries and deaths occurring at alarmingly high rates in intercollegiate football games.[9] Prior to President Theodore Roosevelt’s plea to address these issues,[10] schools dealt “with the same issues that we face today: the extreme pressure to win, which is compounded by the commercialization of sport, and the need for regulations and a regulatory body to ensure fairness and safety.”[11] Officially renamed the National Collegiate Athletic Association in 1910 and comprising sixty-two colleges and universities at the time,[12] the Association’s initial mission focused on “regulat[ing] the rules of college sport and protect[ing] young athletes.”[13] The NCAA’s continued, steadfast commitment to amateurism and ensuring the “student” remains in “student-athlete” traces back to the 1940s and the NCAA’s adoption of the “Sanity Code,” which established “principles that covered financial aid, recruitment and academic standards and were intended to ensure amateurism in college sports.”[14]

Today, the NCAA, a member-led organization, has maintained its protectionist view of student-athletes, focusing on “cultivating an environment that emphasizes academics, fairness, and well-being across college sports.”[15] The NCAA’s regulations center around the concept of amateurism, where “the student-athlete is considered an integral part of the student body, thus maintaining a clear line of demarcation between college athletics and professional sports.”[16] Accordingly, from its formation, the NCAA and student-athletes alike have been of the mindset that student-athletes attended universities primarily for educational reasons, and the NCAA was simply an organization formed to protect its student-athletes and to foster a fair and level playing field. However, since President Roosevelt’s seemingly simple request to “clean up the game,”[17] the NCAA’s member schools have come to include 1,098 colleges and universities competing in 102 different athletics conferences.[18] These universities are comprised of “[n]early half a million college athletes [that] make up the 19,886 teams that send more than 57,661 participants to compete each year in the NCAA’s ninety championships in twenty-four sports across three divisions.”[19]

The sheer number of athletes, teams, universities, and conferences has required the NCAA to implement a governance structure managed by full-time professional leadership.[20] The Board of Governors is the NCAA’s highest governing body, primarily made up of presidents and chancellors, along with two independent members who implement policies pertaining to the Association and other central issues.[21] While these policies have an indirect effect on student-athletes, policies that directly affect collegiate student-athletes derive from various legislative bodies or committees that propose rules and regulations with the goal of “upholding and advancing the Association’s core values of fairness, safety and equal opportunity for all student-athletes.”[22] Committee members—volunteers from member colleges and universities—ultimately decide which regulations or policies to adopt and implement.[23] In promulgating and adopting a rule, the NCAA ensures that the proposed rule reflects its time-honored adherence to the educational component of collegiate athletics. For example, the 2022–23 NCAA Division 1 Manual provides that “[i]ntercollegiate athletic programs shall be maintained as an important component of the educational program, and student-athletes shall be an integral part of the student body.”[24] Thus, despite the clear commercialization of modern college sports addressed in this Note, the NCAA nonetheless rightfully continues to ensure that student-athletes remain students first and athletes second.

II. Statutory Definitions of “Employee” and “Employer”

At the outset, it must be recognized that the NLRB “has exercised jurisdiction over private, nonprofit universities for more than [fifty] years”[25] and that the NLRA only covers private employers.[26] As a result, college athletes at public universities, even if deemed to satisfy the “employee” definition, cannot currently organize or enjoy any protections under the NLRA. The stated purpose of the NLRA is to federally manage labor relations by “encouraging the practice and procedure of collective bargaining . . . for the purpose of negotiating the terms and conditions of [workers’] employment or other mutual aid or protection.”[27] The NLRA begins with a lengthy preamble that summarizes the federal government’s reasonable position that strenuous labor relations largely impede interstate commerce.[28] Because of the interstate nature of modern collegiate athletics and the millions of dollars in revenue generated, proponents of student-athletes’ classification as “employees” rely on the NLRA to further their position.

Section 152 of the NLRA defines both “employer” and “employee,” albeit somewhat vaguely.[29] “Employer” is defined in pertinent part as “any person acting as an agent of an employer,” and “employee” is defined as “any employee . . . or any other person who is not an employer” as defined by the Act.[30] While the NLRA definition is not particularly helpful, the NLRB, following Supreme Court precedent, has applied the common-law definition in determining whether an individual qualifies as an “employee” under the NLRA.[31] The common-law definition provides that “an employee is a person who performs services for another under a contract for hire, subject to the others’ control or right of control, and in return for payment.”[32]

Once deemed an employee under the NLRA, an employee may engage in protected § 157 activity without interference from his or her employer. Section 157 provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”[33] Additionally, § 158(a)(1) protects these rights by prohibiting an employer from interfering with an employee’s § 157 rights in any way.[34] Accordingly, if a particular class of collegiate student-athletes is deemed to be employees of their universities, they may freely engage in protected concerted activity without obstruction or interference from their institutions or the institution’s agents.

While its application is outside the scope of this Note, the Fair Labor Standards Act’s (the “FLSA”) similarly ambiguous definition of “employee” shines light on the difficulty in classifying collegiate student-athletes as “employees” of their universities. The FLSA defines employer to include “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .”[35] Similar to the ambiguous definition provided by the NLRA, an employee is defined as “any individual employed by an employer.”[36] The FLSA differs, for purposes of this Note, in that it provides guarantees to employees for payment of a federally mandated minimum wage and overtime pay,[37] among other guarantees. In comparison, as mentioned above, the NLRA would protect collegiate student-athletes from employer-interference regarding any collective bargaining activity.[38]

III. Development of Recent Cases in Relation to Student-Athletes’ Employee Status Under Federal Law

A. Northwestern University

The recent development towards student-athletes receiving “employee” status under the NLRA first began with a group of scholarship football players at Northwestern University.[39] In their petition, the players contended that they were “employees” within the meaning of the Act and thus entitled to the protections afforded in §§ 157 and 158 of the Act.[40] In holding that the scholarship football players were “employees” under § 152(3),[41] the Regional Director analyzed various characteristics pertaining to the relationship between the employer (Northwestern University) and its alleged employees (the scholarship football players).

The Regional Director first analyzed the conditions that the players are subject to, such as requiring the freshmen and sophomore players to live in on-campus dormitories, abide by a strict social media policy, adhere to strict alcohol and drug policies, and submit to limitations on the athletes’ clothing.[42] The analysis then turned to the amount of time student-athletes devote to their sport, such as a month-long training camp before the start of the season, daily itineraries, practice schedules, and the twelve games per season that required significant travel time.[43] Finally and most importantly, the Regional Director analyzed the university’s revenue generated from its football team, noting that during the preceding season alone, the football team generated $30.1 million in revenue,[44] which the university used to subsidize its non-revenue-generating sports partially.[45] In concluding that the players were employees of Northwestern University within the meaning of the Act, the Regional Director also determined that “[l]ess quantifiable but also of great benefit to the Employer is the immeasurable positive impact to Northwestern’s reputation a winning football team may have on alumni giving and increase in number of applicants for enrollment at the University.”[46]

Despite this potentially monumental development, the NLRB ultimately declined to exercise jurisdiction regarding the Regional Director’s decision.[47] The Board first explained that the case “raises important issues concerning the scope and application of Section 2(3), as well as whether the Board should assert jurisdiction in the circumstances of this case even if the players in the petitioned-for unit are statutory employees . . . .”[48] However, the Board held that “it would not effectuate the policies of the Act to assert jurisdiction in this case, even if we assume, without deciding, that the grant-in-aid scholarship players are employees within the meaning of Section 2(3).”[49] Thus, while the Board did not reach the merits of the issue because asserting jurisdiction would not promote stability in labor relations,[50] a final judicial determination still lingered regarding whether Northwestern University’s football players were “employees” under the Act.

B. Trustees of Columbia University

While outside the collegiate student-athlete context, the NLRB addressed an issue in Trustees of Columbia University[51] that would serve as an important basis for future NLRB decisions. In Trustees of Columbia University, undergraduate and graduate student-assistants petitioned the Board for classification of “employee” status under § 152(3) of the NLRA.[52] At issue was “whether students who perform services at a university in connection with their studies are statutory employees within the meaning of Section 2(3) of the National Labor Relations Act.”[53]

The Board’s analysis began with the Act’s broad, inclusive language in § 152(3), expressly noting that none of the exceptions apply to students “employed” by their colleges or universities.[54] Similar to Northwestern University, the Board then employed the common-law employment test for an employer-employee relationship, which requires that “the employer have the right to control the employee’s work, and that the work be performed in exchange for compensation.”[55] First, the Board determined that Columbia University exerted significant control over the student assistants in that failure to adequately perform their duties resulted in counseling or removal from the position.[56] Second, the Board found that the student assistants received compensation for their services.[57] Importantly, however, the student-assistants’ compensation was in part a payment the student-assistants received that was distinct from any scholarship and was “not merely financial aid.”[58] The Board noted that the funding provided to the student-assistants was “not akin to any scholarship aid passed through the university” and that “[t]he Board and the courts have repeatedly made clear that the extent of any required ‘economic’ dimension to an employment relationship is the payment of tangible compensation.”[59]

In concluding that the student-assistants were common-law employees and thus entitled to bargain collectively and enjoy the protections of the NLRA, the Board reasoned that “where a university exerts the requisite control over the research assistant’s work, and specific work is performed as a condition of receiving the financial award, a research assistant is properly treated as an employee under the Act.”[60] However, the Board expressly stated that its holding did not require the Board to “find workers to be statutory employees whenever they are common-law employees, but only that the Board may” find them to be statutory employees.[61] Accordingly, the Board’s holding in Trustees of Columbia University sets the basis moving forward that student-athletes might be considered “employees” within the meaning of the Act if they satisfy the common-law definition employed by the NLRB.

C. Berger v. NCAA and Johnson v. NCAA

While the NLRB has applied the common-law definition of “employee” in interpreting § 152(3)’s broad language, it is important to recognize that there is a second test that modern courts have employed in determining whether an individual or particular class of individuals constitutes an “employee.” In Berger v. NCAA,[62] two women who competed on the University of Pennsylvania women’s track and field team sued the university, the NCAA, and more than 120 other Division 1 schools, “alleging that student athletes are ‘employees’ within the meaning of the FLSA.”[63] While the NLRA in pertinent part protects employees from employer-interference when engaging in protected concerted activity,[64] the FLSA provides other protections, such as requiring “every employer to pay ‘his employees’ a minimum wage . . . .”[65]

To determine a collegiate student-athlete’s status as an “employee” under the FLSA, the Seventh Circuit first explained that courts “must examine the ‘economic reality’ of the working relationship between the alleged employee and the alleged employer to decide whether Congress intended the FLSA to apply to that particular relationship.”[66] Under this economic reality test, the court reasoned that “the long tradition of amateurism in college sports, by definition, shows that student athletes . . . participate in their sports for reasons wholly unrelated to immediate compensation.”[67] Thus, the court concluded that this time-honored practice of amateurism outlines the economic reality between universities and their student-athletes, and therefore, the student-athletes could not satisfy this test.[68] In so doing, however, the court failed to correctly analogize student-athletes to students participating in work-study programs, which receive “employee” status under the FLSA.[69] Moreover, the court’s reasoning is somewhat circular: it relied on the amateur status of these athletes and the tradition of amateurism to determine that they were not “employees.”

Contrary to the Seventh Circuit’s holding, one of the most recent cases involving the “employee” status of student-athletes is Johnson v. NCAA.[70] In that case, the plaintiffs—primarily student-athletes from non-revenue-generating sports—alleged in part that their respective schools received significant financial benefits as a result of their participation in collegiate athletics,[71] and therefore, they were entitled to compensation.[72] Applying the economic realities test, the United States District Court for the Eastern District of Pennsylvania analyzed “the economic realities of the relationship in determining employee status under the FLSA” and concluded that the student-athlete plaintiffs could be considered employees.[73] However, this holding simply stated that the student-athlete plaintiffs could be considered employees under the FLSA, meaning the complaint merely survived the defendants’ motion to dismiss.[74] The defendants appealed to the Third Circuit, which agreed to hear an interlocutory appeal “on the question of whether Division 1 student-athletes can be employees of their schools solely by virtue of their participation in interscholastic athletics.”[75] Thus, while Berger and Johnson are instructive in that they demonstrate the emphasis courts place on the economic relationship between student-athletes and their respective institutions, there is no current judicial determination regarding whether student-athletes are employees within the meaning of the FLSA.

IV. General Counsel Jennifer Abruzzo’s Memorandum

On September 29, 2021, Jennifer Abruzzo, General Counsel of the NLRB, issued Memorandum GC 21-08.[76] Memorandum GC 21-08 “provide[d] updated guidance regarding [her] prosecutorial position that certain Players at Academic Institutions are employees under the Act”[77] and reinstated Memorandum GC 17-01, which addressed Northwestern University.[78] General Counsel Abruzzo explained that “certain Players at Academic Institutions are employees under the Act and are entitled to protection from retaliation when exercising their Section 7 rights.”[79] Most notably, the memorandum provided that “although the Board in Northwestern University declined to exercise jurisdiction over scholarship football players at that university, nothing in that decision precludes the finding that scholarship football players at private colleges and universities, or other similarly situated Players at Academic Institutions, are employees under the Act.”[80]

Relying in part on the Board’s previous decisions in Boston Medical Center Corp. and Trustees of Columbia University, Abruzzo concluded that certain collegiate student-athletes “perform services for their colleges and the NCAA, in return for compensation, and subject to [the NCAA’s and the college’s] control.”[81] She also grounded her position in the statutory language of § 152(3) and the underlying policies of the NLRA.[82] As in Trustees of Columbia University, where the Board noted that none of the exceptions applied to work-study students, Abruzzo similarly noted that the football players do not fall under any of the exceptions.[83] In reaching her conclusion, Abruzzo recognized the broad, expansive language of § 152(3) and that the Board has consistently applied common-law agency rules when applying the Act’s broad language.[84]

The memorandum included detailed findings concerning the football players in Northwestern University, reiterating that those players met the common-law test to establish an employer-employee relationship.[85] For example, the universities profited tens of millions of dollars, the players positively impacted the university’s reputation, and increased financial donations from alumni, all while receiving payment and being subject to the university’s strict control.[86] Thus, Abruzzo confidently concluded that the football players were “employees” within the meaning of the Act and undoubtedly satisfied the common-law test.[87] However, the question remains: which class of student-athletes are similarly situated to the football players in Northwestern University?

V. The Common-Law Definition of “Employee”

The NLRB has consistently applied the common-law definition of “employee” in determining whether an individual is an “employee” within the meaning of the Act. In GC Memorandum 21-08, addressed in Part IV, General Counsel Abruzzo explained that “[t]he Board has also applied common-law agency rules governing the employer-employee relationship when applying the Act’s expansive language and purpose to determine employee status.”[88] The common-law definition used by the NLRB is that “an employee is a person who performs services for another under a contract for hire, subject to the others’ control or right of control, and in return for payment.”[89] Notably, the U.S. Supreme Court has supported the NLRB’s use of the common-law definition.[90] For example, in NLRB v. Town & Country Electric,[91] the Court recognized that the language of § 152(3) is broad and noted that the Board’s interpretation of “employee” reflects Congress’ intent.[92] The Court explained that “[i]n the past, when Congress has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.”[93] Thus, in determining whether “employee” status can extend to a particular group of student-athletes, the NLRB will employ common-law agency rules.

VI. Non-Revenue-Generating Student-Athletes Are Not Employees Within the Meaning of the Act

Because collegiate student-athletes participating in non-revenue-generating sports at private colleges or universities are not similarly situated to the revenue-generating football players in Northwestern University, they should not be entitled to enjoy “employee” classification under the NLRA. Collegiate athletic programs can be bifurcated into two broad categories. The first category, which includes the Northwestern University football players, is revenue-generating sports. For purposes of this Note, revenue-generating sports include Division 1 men’s basketball and football programs.[94] As laid out below, many commentators and legal scholars conclude that these programs undoubtedly provide great financial services for their respective institutions. The second category is non-revenue-generating sports, which includes all other athletic programs, such as track and field, golf, tennis, baseball, soccer, and swimming.[95] While every student-athlete considers his or her sport important, as discussed below, the fact of the matter is that these athletes simply do not “perform services” equivalent to that of their revenue-generating counterparts.

A. Applying the Common-Law Test to Student-Athletes in Non-Revenue-Generating Sports
1. Non-Revenue-Generating Student-Athletes Do Not “Perform Services” for Their Institutions

As discussed above, the NLRB often applies common-law agency rules to determine if an employer-employee relationship exists. The common-law test provides that an employee is one “who perform[s] services for another and [is] subject to the other’s control or right of control”[96] in return for compensation.[97] Under this test, both Abruzzo and the Regional Director in Northwestern University properly concluded that the Northwestern University football players, as revenue-generating student-athletes, could be considered “employees” within the meaning of § 152(3) of the Act.

At the Division 1 level, college football and basketball programs generate exorbitant revenue not only for the institutions themselves but also for their respective conference and the NCAA.[98] In all athletic departments of NCAA member schools, “football is the key driver of athletic department operations,”[99] both in terms of revenue and general name recognition.[100] For example, in 2019, the top twenty-five teams in college football generated a combined $1.5 billion in profit for their colleges and universities.[101] At the conference level, the Big Ten Conference recently signed a broadcasting deal with major cable networks and a streaming service that will produce over $7 billion in revenue for the conference for the next seven years.[102] The College Football Playoff, comprised of college football’s top four teams, recently approved a postseason expansion estimated to generate nearly $2 billion a year.[103] Moreover, in 2016, the NCAA signed an eight-year extension with Turner Sports to continue broadcasting coverage of the NCAA basketball tournament, which will produce $8.8 billion for NCAA member schools.[104] Based on these numbers alone, it is clear that the student-athletes participating in Division 1 men’s basketball and football programs unquestionably “perform services” by generating enormous amounts of revenue for their universities or conferences and are thus “similarly situated” to the football players in Northwestern University.

In comparison, student-athletes participating in non-revenue-generating athletic programs do not “perform services” for their institutions. As the author of this Note is a former Division 1 student-athlete in a traditional non-revenue-generating sport, in no way is this Note attempting to devalue these programs. However, these sports do not produce the same tangible returns for private institutions as men’s basketball and football programs. As previously discussed, in analyzing whether student-athletes “perform services” for their colleges or universities, courts emphasize the financial component of the relationship—specifically, the revenue generated from that sport.[105] Using revenue as the guiding metric, this Note highlights that non-revenue-generating sports, as a whole, simply do not generate the “cold, hard cash” [106] that sports like football and basketball produce.

Take the University of Notre Dame and Duke University as paradigmatic. In 2021, Notre Dame reported a combined revenue from men’s basketball and football of $91,563,855, offset by $48,630,144 in expenses, resulting in a net profit of $42,933,711.[107] In all other sports, the revenue generated amassed to a mere $4,436,705 while accruing $33,132,089 in expenses, resulting in a net loss of $28,695,384.[108] Similarly, Duke University reported a combined men’s basketball and football revenue of $59,860,751, expenses of $36,756,084, and a net profit of $23,104,667.[109] Non-revenue-generating sports, on the other hand, generated $27,774,939 in revenue, $34,157,042 in expenses, and a net loss of $6,382,103.[110]

These consistent, year-over-year losses from non-revenue-generating sports result in only 2.26 percent of NCAA member schools generating a profit from their athletic departments.[111] To combat the sizable financial losses of non-revenue-generating sports, these institutions are commonly forced to subsidize them through the profits realized from revenue-generating sports.[112] Because of the expenses accrued, profits from an institution’s men’s basketball and football programs are “diverted to cover the expenses of non-revenue programs,”[113] and those profits are “often dissipated in helping to keep other programs operating.”[114] It is for this additional reason that revenue-generating sports are “performing a service” for their institutions. While proponents argue that non-revenue-generating sports nonetheless “perform a service” by graduating at higher rates or promoting the university’s name in niche markets,[115] this is simply not enough to meet the requisite standards for an employer-employee relationship. Even in other contexts, the NLRB and U.S. Supreme Court have concluded that the Act covers an employee when the employer-employee relationship is an “economic relationship.”[116] That is, the employer must experience a direct financial benefit, and the employee must receive tangible compensation.[117] Because non-revenue-generating sports are essentially performing a financial or economic disservice to their institutions, they accordingly do not meet this component of the common-law test.

2. Non-Revenue-Generating Student-Athletes Are Subject to Their Institution’s Control or Right of Control

The common-law test for establishing an employer-employee relationship requires that the employee be “subject to the other’s control or right of control.”[118] In applying the test, the U.S. Supreme Court has considered whether the employer has the right to control the manner and means of the employee’s production.[119] As this author witnessed and experienced firsthand, the NCAA and its member institutions undoubtedly exert substantial control over all its student-athletes. Thus, while unable to satisfy the other two components of the test, student-athletes in non-revenue-generating sports are certainly controlled by or subject to the control of their respective institutions. While this Note does not expound upon the control wielded over student-athletes in revenue-generating sports, Abruzzo’s memorandum, for example, depicts the level of control Northwestern University and the NCAA had over members of the football team.[120]

For the majority of student-athletes in non-revenue-generating sports, the reality of intercollegiate athletics is that they typically spend more time training, practicing, and competing than they spend time in the classroom or studying.[121] At the NCAA level, the NCAA places copious restrictions on all of its Division 1 member institutions, such as academic eligibility requirements,[122] regulations and restrictions pertaining to each individual sport,[123] and numerous restrictions that further the NCAA’s amateurism principles.[124] Further, NCAA regulations also expressly state that a student-athlete’s financial aid may be reduced or canceled if the student-athlete commits any of the acts expressly provided in § 15.3.5 of the Division 1 Manual.[125]

The NCAA directs that it is the responsibility of each member institution to conduct and control its athletic department in a manner that ensures compliance with the NCAA’s Constitution and bylaws.[126] At the institutional or conference level, additional or supplemental regulations may also be placed on student-athletes. For instance, Stanford University’s Student-Athlete Handbook provides that “[e]very student-athlete is subject to NCAA, Pac-12, and Stanford University rules and regulations that can affect [their] collegiate eligibility.”[127] Additionally, the Athletic Policy Manual of Duke University provides that its Drug Testing Program is separate from the NCAA’s and that “the University may test for any substance … not contained on the NCAA’s list of banned substances . . . .”[128] Failure to comply with applicable institutional-level regulations may result in a reduction, cancellation, or nonrenewal of a student-athlete’s financial aid.[129]

Lastly, all student-athletes, including members of non-revenue-generating athletic programs, are subject to their respective team’s rules and regulations. Individual team rules and regulations have been a long-standing tradition in intercollegiate athletics.[130] While team rules in both revenue and non-revenue-generating sports were initially meant to implement goals or minor procedures for the upcoming season, these regulations have transformed into a system that “invades, inspects, lords over, stereotypes, discriminates and pronounces judgment on multiple aspects of players’ personal lives.”[131]

For example, at the University of Virginia, one rule orally imposed on golf team members, including this author, provided for removal from the morning workout if any team members wore another university’s article of clothing. Surprisingly, in the Texas Tech softball program and Kansas women’s basketball program, team policies also govern relationships and displays of affection.[132] Similar to failing to comply with NCAA regulations, a student-athlete’s financial aid may be reduced or even canceled if the student-athlete violates a team rule.[133] Although this conclusion is certainly not dispositive, student-athletes competing in both revenue and non-revenue-generating athletic programs are certainly subject to the control of their respective institutions.

3. Non-Revenue-Generating Student-Athletes Do Not Perform Services in Return for Compensation

Lastly, where “employee” status under the NLRA certainly fails for non-revenue-generating student-athletes, the common-law test mandates that the employee perform services for another in return for compensation.[134] In 2015, after gaining legislative autonomy, the Power Five Conferences[135] (the Atlantic Coast Conference, Southeastern Conference, Big 12 Conference, Big Ten Conference, and Pac-12 Conference) promulgated legislation that sought to expand statutory financial benefits to all scholarship student-athletes in the conferences.[136] Included in this legislation, and ultimately incorporated into the modern NCAA Division 1 Manual, was a provision permitting the expansion of institutional financial aid to cover “any other financial aid up to the [true] cost of attendance.”[137] This includes “the total cost of tuition and fees, room and board, books and supplies, transportation, and other expenses related to attendance at the institution.”[138] While only initially applicable to the member institutions of the Power Five Conferences, institutions in other conferences have followed suit.[139]

Despite certain conferences expanding the amount of institutional financial aid to cover the true cost of attendance, the NCAA—holding true to its amateurism principles—still mandates that “an individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual . . . [u]ses athletic skills (directly or indirectly) for pay in any form in that sport,” or engages in similar conduct prohibited in that section.[140] Thus, a student-athlete is still prohibited from receiving compensation from his or her institution outside of institutional financial aid or the minimum amount of stipends used to cover some costs associated with attending the institution.

Many scholars and commenters posit that a student-athlete’s scholarship constitutes compensation, arguing that “college players are already getting paid . . . in the form of free tuition and other benefits.”[141] However, this argument misses the mark. As one analogy aptly provides, contending that a student-athlete’s scholarship constitutes compensation is akin to arguing that a worker is not entitled to a salary because he or she receives insurance.[142] Moreover, the non-revenue-generating student-athlete’s financial aid differs substantially from that of employees in the general employment context. For instance, while employees in other settings are permitted to negotiate certain benefits, NCAA guidelines preclude any such negotiation on the part of the student-athlete.[143] These restrictions are enacted in part to preserve student-athletes’ amateur status by preventing them from receiving true compensation—or “pay,” to use the NCAA’s language—outside his or her institution’s financial aid.[144]

Importantly, any financial aid granted to a student-athlete in a non-revenue-generating program differs from the student-assistants’ compensation in Trustees of Columbia University. In that case, the NLRB concluded that the student-assistants’ services provided to the institution and its faculty resulted in “tangible compensation” or direct payments, and that this exchange constituted “compensation” under the common-law test for an agency relationship.[145] A scholarship is not “tangible compensation” in that the student-athlete is not free to spend it however he or she sees fit. In Trustees of Columbia University, the Board only considered the direct payments the student-assistants received, noting that they were distinct from scholarship aid.[146] Thus, because the NCAA prohibits compensation outside of institutional financial aid or stipends, and apart from any NIL payments that are outside the scope of this Note, non-revenue-generating student-athletes do not receive compensation from their institution and are unable to satisfy this element of the common-law test.

B. Non-Revenue-Generating Student-Athletes Also Fail to Satisfy the Statutory Definition Test

Both the NLRB and the Supreme Court have recognized § 152(3)’s exceptionally broad definition of “employee.”[147] Coupled with the definition’s breadth and the underlying policies of the NLRA, the NLRB is also entitled to significant deference in its statutory interpretation.[148] Further, the NLRB has determined that the absence of a particular group in the statute’s categorial exceptions is strong evidence of coverage.[149] Proponents of student-athletes’ “employee” classification, including Jennifer Abruzzo, therefore cite the absence of collegiate student-athletes in the categorial exceptions as strong evidence of classification.[150] Despite the NLRB’s deference and the presumption for statutory coverage, the NLRB has made clear that statutory coverage may not be extended if “there are strong reasons not to do so.”[151] In this particular context, there are several reasons not to do so.

Because private institutions constitute a small percentage of Division 1 schools, there are severe practical implications if non-revenue-generating student-athletes at private schools are permitted to enjoy the protections of the NLRA, such as collective bargaining. For example, if such a program at a private institution is deemed a bargaining unit, the NLRB would in effect create a convoluted intercollegiate environment where only a small percentage of student-athletes are protected under the Act. Notably, the Board in Northwestern University similarly declined to exercise jurisdiction because the “vast majority” of collegiate athletic programs are operated by state-run institutions.[152] Additionally, distinct from the student-assistants in Trustees of Columbia University, each institution’s teams would determine if an individual team classified a bargaining unit or whether all student-athletes would constitute one bargaining unit. Thus, one private institution may have one bargaining unit per team, and another may have one bargaining unit for its entire athletic program, which could lead to a wide array of discrepancies between the institutions. Lastly, and most significantly, granting “employee” status to non-revenue-generating student-athletes indubitably crosses the line of demarcation between professional and intercollegiate sports. As the Board in Northwestern University explained, while all players for professional sports teams may be represented for purposes of collective bargaining, granting “employee” status to some student-athletes will ultimately leave others completely unrepresented or outside the Board’s jurisdiction.[153] Moreover, the Board’s analysis in that case is applicable here, where enforcement of NCAA regulations and inclusion of additional regulations are left primarily to the individual institutions or the institutions’ respective conferences. Accordingly, there are strong policy reasons not to extend “employee” classification to non-revenue-generating student-athletes.


In the past decade, numerous court decisions, proposed legislation, and General Counsel Jennifer Abruzzo’s Memorandum all point to the inevitable conclusion that student-athletes participating in revenue-generating athletic programs will be classified as “employees” under the NLRA, and perhaps rightfully so. Thus, these athletes will be entitled to the protections afforded under §§ 157 and 158. However, the question remains as to how student-athletes in non-revenue-generating athletic programs will be classified under the NLRA. In employing the common-law test for an employer-employee relationship applied by the NLRB, these student-athletes should not be classified as “employees” of their respective institutions. While their revenue-generating counterparts undoubtedly perform a service for their college or university, the expenses imposed by non-revenue-generating sports on their institutions suggest that these programs do not meet this component of the common-law test. Despite being subjected to significant control of their university, this is not enough in the eyes of the courts and the NLRB to simply classify these student-athletes as employees. Further, the mere fact that many non-revenue-generating student-athletes receive institutional financial aid does not warrant a conclusion that they receive “compensation.” While non-revenue-generating athletic programs are unquestionably important to the landscape of intercollegiate athletics, they are not “similarly situated” to the Northwestern University football players and are thus not entitled to employee-status under the NLRA.

  1. . Nw. Univ., 362 N.L.R.B. 1350 (2015).

  2. . Id.

  3. . Id.

  4. . Id.

  5. . Memorandum GC 21-08 from Jennifer A. Abruzzo, Gen. Couns., NLRB, to All Reg’l Dirs., Officers-in-Charge, and Resident Officers, NLRB 1 (Sept. 29, 2021), https://apps.nlrb.gov/link/document.aspx/09031d458356ec26.

  6. . Id. at 2 (emphasis added).

  7. . Id. at 4.

  8. . Id. at 1.

  9. . History, NCAA, https://www.ncaa.org/sports/2021/5/4/history.aspx (last visited Mar. 29, 2024) (“During the 1904 season alone, there were 18 deaths and 159 serious injuries on the field.”).

  10. . Id.

  11. . Rodney K. Smith, A Brief History of the National Collegiate Athletic Association’s Role in Regulating Intercollegiate Athletics, 11 Marq. Sports L. Rev. 9, 12 (2000).

  12. . History, supra note 9.

  13. . Id.

  14. . Id.

  15. . Mission and Priorities, NCAA, https://www.ncaa.org/sports/2021/6/28/mission-and-priorities.aspx (last visited Mar. 29, 2024).

  16. . NCAA, 2022–23 NCAA Division I Manual § 12.01.2 (2022) [hereinafter NCAA Division I Manual], https://www.ncaapublications.com/productdownloads/D123.pdf.

  17. . History, supra note 9.

  18. . What is the NCAA?, NCAA, https://www.ncaa.org/sports/2021/2/10/about-resources-media-center-ncaa-101-what-ncaa.aspx (last visited Mar. 29, 2024).

  19. . Id.

  20. . History, supra note 9.

  21. . Governance, NCAA, https://www.ncaa.org/sports/2021/2/9/governance.aspx (last visited Mar. 29, 2024).

  22. . Id.

  23. . What is the NCAA?, supra note 18.

  24. . NCAA Division I Manual, supra note 16, at xiii.

  25. . Trs. of Columbia Univ., 364 N.L.R.B. 1080, 1081 (2016).

  26. . Are You Covered?, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/are-you-covered (last visited Mar. 29, 2024) (“Excluded from coverage under the Act are public-sector employees . . . .”).

  27. . National Labor Relations Act of 1935, 29 U.S.C. § 151.

  28. . Id.

  29. . 29 U.S.C. § 152(2)–(3).

  30. . Id.

  31. . See Nw. Univ., 362 N.L.R.B. 1350, 1362–63 (2022) (citing NLRB v. Town & Country Elec., 516 U.S. 85, 94 (1995)).

  32. . Id. at 1363.

  33. . 29 U.S.C. § 157.

  34. . Id. § 158(a)(1).

  35. . Id. § 203(d).

  36. . Id. § 203(e)(1).

  37. . Wages and the Fair Labor Standards Act, U.S. Dep’t Lab., https://www.dol.gov/agencies/whd/flsa (last visited Mar. 29, 2024).

  38. . See 29 U.S.C. § 157.

  39. . See Nw. Univ., No. 13-RC-121359, 2014 N.L.R.B. LEXIS 221, at *2 (Mar. 26, 2014).

  40. . Id. at *1.

  41. . Id. at *2.

  42. . Id. at *3–5, *10.

  43. . Id. at *13–16.

  44. . Id. at *13. This amount, the Regional Director noted, was offset by $21.7 million in expenses. Id.

  45. . Id.

  46. . Id. at *40–41.

  47. . Nw. Univ., 362 N.L.R.B. 1350, 1350 (2022).

  48. . Id.

  49. . Id.

  50. . Id. at 1352.

  51. . 364 N.L.R.B. 1080 (Aug. 23, 2016).

  52. . Id. at 1093.

  53. . Id. at 1080.

  54. . Id.

  55. . Id. at 1094.

  56. . Id.

  57. . Id.

  58. . Id.

  59. . Id. at 1097, 1084−85 (emphasis added).

  60. . Id. at 1096.

  61. . Id. at 1083 (emphasis added).

  62. . 843 F.3d 285 (7th Cir. 2016).

  63. . Id. at 289.

  64. . 29 U.S.C. § 158(a)(1).

  65. . Berger, 843 F.3d at 290 (citing 29 U.S.C. § 206(a)(1)(C)).

  66. . Id.

  67. . Id. at 293.

  68. . Id. at 291.

  69. . Id. at 293.

  70. . 556 F. Supp. 3d 491 (E.D. Pa. 2021).

  71. . Id. at 507.

  72. . Id. at 495.

  73. . Id. at 506.

  74. . Id. at 512.

  75. . Johnson v. NCAA, No. 19-5230, 2021 WL 6125095 (E.D. Pa. Dec. 28, 2021); see also Third Circuit to Decide Whether Student Athletes May be Employees, McGuireWoods (Feb. 7, 2022), https://www.mcguirewoods.com/client-resources/Alerts/2022/2/third-circuit-to-decide-whether-student-athletes-may-be-employees.

  76. . Abruzzo, supra note 5.

  77. . Id. at 1 (emphasis added).

  78. . Memorandum GC 17-01 from Richard Griffin, Jr., Gen. Couns., NLRB, on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context to All Reg’l Dirs., Officers-in-Charge, and Resident Officers, NLRB (Jan. 31, 2017), https://apps.nlrb.gov/link/document.aspx/09031d4582342bfc.

  79. . Abruzzo, supra note 5, at 2.

  80. . Id. (emphasis added).

  81. . Id. at 3.

  82. . Id. at 2.

  83. . Id. at 2–3 (“Those exceptions [in Section 2(3)] do not include university employees, football players, or students.”).

  84. . Id. at 3.

  85. . Id. at 4.

  86. . Id. at 3–4

  87. . Id. at 4.

  88. . Id. at 3.

  89. . Nw. Univ., No. 13-RC-121359, 2014 N.L.R.B. LEXIS 221, at *40 (Mar. 26, 2014).

  90. . Bos. Med. Ctr. Corp., 330 N.L.R.B. 152, 160 (1999).

  91. . NLRB. v. Town & Country Elec., 516 U.S. 85 (1995).

  92. . Id. at 94.

  93. . Id. (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992)).

  94. . See Robert A. McCormick & Amy Christian McCormick, The Myth of the Student-Athlete: The College Athlete as Employee, 81 Wash. L. Rev. 71, 97–98 (2006) (explaining that Division 1 men’s football and basketball programs are revenue-generating sports); Nicholas C. Daly, Note, Amateur Hour is Over: Time for College Athletes to Clock in Under the FLSA, 37 Ga. St. U. L. Rev. 471, 486 (2021) (defining revenue-generating sports as “Division 1 men’s basketball and Football Bowl Subdivision (FBS) football”). While some commentators also include other sports, such as men’s ice hockey, baseball, and women’s basketball, these sports only produce revenue for some universities and were included for purposes of a discussion that is outside the scope of this Note. See Christopher J. Gerace, The NCAA’s Transfer Conundrum, 94 Notre Dame L. Rev. 1819, 1819 n.4 (2019) (noting that “[t]hese are not the only sports that generate any revenue at all; rather, they are the sports specifically excluded from the NCAA’s ‘One-Time Transfer Exception’”).

  95. . The NCAA governs twenty-four sports across all three divisions. What is the NCAA?, supra note 18. Thus, this Note argues that the vast majority of collegiate student-athletes, participating in the twenty-two sports outside of men’s basketball and football, should not be considered “employees” under the NLRA.

  96. . Bos. Med. Ctr. Corp., 330 N.L.R.B. 152, 160 (1999).

  97. . Id.

  98. . Many commentators and legal scholars have convincedly argued that student-athletes in revenue-generating athletic programs, such as men’s basketball and football, should be considered employees of their university. Thus, this Note does not specifically address this issue. However, it is necessary to briefly provide context regarding the revenue these sports contribute to their university’s bottom-line.

  99. . Spencer D. Wyld & David C. Wyld, College Football’s Bottom-Line Impact: Exploring the Relationship of Football Performance on Athletic Finances for Division I Institutions Today, The Sport J. (July 23, 2021), https://thesportjournal.org/article/college-footballs-bottom-line-impact-exploring-the-relationship-of-football-performance-on-athletic-finances-for-division-i-institutions-today/.

  100. . Id.

  101. . Chris Smith, College Football’s Most Valuable Teams: Reigning Champion Clemson Tigers Claw Into Top 25, Forbes (Sept. 12, 2019, 6:00 AM), https://www.forbes.com/sites/chrissmith/2019/09/12/college-football-most-valuable-clemson-texas-am/?sh=120198c0a2e7.

  102. . Andrew Limbong, College Football is Back and Players Still Aren’t Getting Paid, NPR (Sept. 2, 2022, 3:13 PM), https://www.npr.org/2022/09/02/1120610858/college-football-nil-big-ten.

  103. . Nicole Auerbach & Stewart Mandel, The Future of College Football, Inc.: Where the Sport’s Money and Management Go From Here, The Athletic (Sept. 27, 2022), https://theathletic.com/3627099/2022/09/27/college-football-ncaa-breakaway-revenue-sharing/.

  104. . Tyler Conway, NCAA Agrees to New Contract with Turner, CBS for March Madness Rights, Bleacher Rep. (Apr. 12, 2016), https://bleacherreport.com/articles/2632358-ncaa-agrees-to-new-contract-with-turner-cbs-for-march-madness-rights.

  105. . Nw. Univ., No. 13-RC-121359, 2014 N.L.R.B. LEXIS 221, at *1 n.1, *41 (Mar. 26, 2014) (determining in part that football players at Northwestern University were employees within the meaning of the NLRA because the university generated millions of dollars in revenue per year from the student-athletes); Johnson v. NCAA, 556 F. Supp. 3d 491, 497 (E.D. Pa 2021) (discussing a university’s and the NCAA’s revenue generated from NCAA athletics and its student-athletes).

  106. . Emma Healy, The Hidden Revenue Behind Non-Revenue Sports, The Heights (Feb. 8, 2021, 1:21 PM), https://www.bcheights.com/2021/02/08/importance-of-non-revenue-sports/.

  107. . U.S. Dep’t Educ., Equity in Athletics Data Analysis, University of Notre Dame (2021–22), https://ope.ed.gov/athletics/#/institution/details (search “University of Notre Dame”; then click to continue; then click “Revenue and Expenses”).

  108. . Id.

  109. . U.S. Dep’t Educ., Equity in Athletics Data Analysis, Duke University (2021–22), https://ope.ed.gov/athletics/#/institution/details (search “Duke University”; then click to continue; then click “Revenue and Expenses”).

  110. . Id.

  111. . Kathy Johnson Bowles, Should Institutions Support Sports Programs That Don’t Make Money?, Inside Higher Ed (Dec. 14, 2021) (citing Finances of Intercollegiate Athletics, NCAA, https://www.ncaa.org/sports/2013/11/19/finances-of-intercollegiate-athletics.aspx (last visited Mar. 29, 2024)), https://www.insidehighered.com/blogs/just-explain-it-me/should-institutions-support-sports-programs-don%E2%80%99t-make-money.

  112. . Kristi Dosh, Does Football Fund Other Sports At College Level?, Forbes (May 5, 2011, 9:02 PM), https://www.forbes.com/sites/sportsmoney/2011/05/05/does-football-fund-other-sports-at-college-level/?sh=356ee4d771c2 (“football, and sometimes men’s basketball, subsidizes a (sometimes large) portion of the expenses for other teams”).

  113. . Rodney K. Smith & Robert D. Walker, From Inequity to Opportunity: Keeping the Promises Made to Big-Time Intercollegiate Student Athletes, 1 Nev. L.J. 160, 164 (2001).

  114. . Id.

  115. . See Healy, supra note 106.

  116. . Trs. of Columbia Univ., 364 N.L.R.B. 1080, 1084 (2016).; Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 281 (1956) (determining that the Act covered plastic manufacturing employees because the employment contract “deal[t] solely with the economic relationship between the employers and the employees”).

  117. . Columbia Univ., 364 N.L.R.B. at 1085.

  118. . Bos. Med. Ctr. Corp., 330 N.L.R.B. at 160.

  119. . See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989).

  120. . Abruzzo, supra note 5, at 4 (explaining that “the university control[ed] the manner and means of the players’ work on the field and various facets of the players’ daily lives to ensure compliance with NCAA rules; for example, the university maintain[ed] detailed itineraries regarding the players’ daily activities and football training, enforce[d] the NCAA’s minimum GPA requirement, and penalize[d] players for any college or NCAA infractions, which could result in removal from the team and loss of their scholarship”).

  121. . Lynn O’Shaughnessy, Do College Athletes Have Time to Be Students?, CBS News (Feb. 18, 2011, 10:56 AM), https://www.cbsnews.com/news/do-college-athletes-have-time-to-be-students/ (“Athletes in some sports are spending more time in uniform than they are attending classes and studying.”).

  122. . NCAA Division I Manual, supra note 16, art. 14.

  123. . Id. art. 17.

  124. . Id. § 12.1.

  125. . Id. § 15.3.5.

  126. . Id. at xiii.

  127. . Stanford Univ., Student-Athlete Handbook 39 (2017), https://stanford_ftp.sidearmsports.com/custompages/Compliance/Handbook.pdf.

  128. . Duke Univ., Athletic Policy Manual of Duke University 18 (2023), https://goduke.com/documents/2023/10/27/Athletic_Policy_Manual.pdf.

  129. . Id. at 15; Stanford Univ., supra note 127, at 30–31.

  130. . Luke Cyphers & Daniel Libit, “Must Let Head Coach Know…, The Intercollegiate (last visited Mar. 29, 2024), https://theintercollegiate.com/must-let-head-coach-know/ (“Team rules have long been a staple of interscholastic and intercollegiate sports . . . .”).

  131. . Id.

  132. . Id.

  133. . Id.

  134. . Bos. Med. Ctr. Corp., 330 N.L.R.B. 152, 160 (1999) (citing NLRB v. Town & Country Elec., 516 U.S. 85, 90 (1995)).

  135. . See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1244 n.1 (9th Cir. 2020), aff’d sub nom. Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69 (2021).

  136. . Steve Berkowitz, NCAA Increases Value of Scholarships in Historic Vote, USA Today (Jan. 17, 2015, 4:31 PM), https://www.usatoday.com/story/sports/college/2015/01/17/ncaa-convention-cost-of-attendance-student-athletes-scholarships/21921073/.

  137. . NCAA Division I Manual, supra note 16, §

  138. . Id. at 186.

  139. . Matthew J. Mitten et al., Sports Law and Regulation 117 (5th ed. 2020).

  140. . NCAA Division I Manual, supra note 16, § 12.1.2.

  141. . E.g., Chrissy Clark, NCAA Players Already Get Paid. It’s Called Free Tuition, The Federalist (Aug. 8, 2019), https://thefederalist.com/2019/08/08/ncaa-players-already-get-paid-its-called-free-tuition/.

  142. . Taylor Branch, Why Scholarships Don’t Count as Payment for College Athletes, The Atl. (Sept. 26, 2011), https://www.theatlantic.com/entertainment/archive/2011/09/why-scholarships-dont-count-as-payment-for-college-athletes/245637/.

  143. . Sam C. Ehrlich, “But They’re Already Paid”: Payments In-Kind, College Athletes, and the FLSA, 123 W. Va. L. Rev. 1, 13 (2020).

  144. . Id.

  145. . Trs. of Columbia Univ., 364 N.L.R.B. 1080, 1085 (2016).

  146. . Id. at 1097.

  147. . Id. at 1080 (“our starting point in determining whether student assistants are covered by the Act is the broad language of Section 2(3)”); NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 90 (1995).

  148. . Town & Country Elec., 516 U.S. at 94.

  149. . Columbia Univ., 364 N.L.R.B. at 1083.

  150. . Abruzzo, supra note 5, at 2–3.

  151. . Columbia Univ., 364 N.L.R.B. at 1081.

  152. . Nw. Univ., 362 N.L.R.B. 1350, 1354 (2015).

  153. . Id. at 1353.

By Sam Kiehl

Anytime you are stuck in a relationship that you want out of, it’s tough. But that’s especially so when you’re only five hundred twenty-six days into a nineteen-year contract with an embattled cryptocurrency exchange that allegedly used customer funds to make risky trades and reportedly owes creditors more than $3 billion.[1]  Fortunately for Miami-Dade County, a federal bankruptcy judge recently terminated the naming rights agreement of the Miami area arena between the county and FTX.[2]

In March 2021, the Miami-Dade County Board of County Commissioners approved a $135 million deal with FTX for naming rights of what was formerly American Airlines Arena.[3]  While $2 million a year went to the Miami Heat, the professional basketball organization that uses the twenty-one thousand capacity arena as its home venue, approximately $90 million of the agreement was allocated to the county’s anti-poverty and gun violence mitigation program, known as the Peace and Prosperity Plan.[4]

In response to the announcement that FTX would initiate Chapter 11 proceedings, however, Miami-Dade County and the Miami Heat immediately sought to terminate the business relationship between the parties and find a new naming rights partner for the arena.[5]  On November 22, 2022, the county petitioned the U.S. Bankruptcy Court for the District of Delaware to remove FTX’s name from the venue.[6]  This request came just over a month after the arena had finally replaced the aircraft associated with the arena’s original sponsor, American Airlines, with FTX’s logo on the arena’s roof.[7]

Most recently, on January 11, 2023, Judge Dorsey of the bankruptcy court approved a stipulation ending the naming rights agreement between the two parties.[8]  The order, which is retroactive to December 30, 2022, terminated all licenses and other rights granted by FTX to Miami-Dade County in accordance with the original agreement under any trademarks or trade names, including naming rights.[9]  The order does not prevent FTX and the county from asserting additional damage claims under the agreement moving forward.[10]  This means that starting soon, if not already, all FTX signage and advertising will be removed from the arena, which will proceed under the name Miami-Dade Arena until a new naming rights partner is found.[11]  Removing signage is not a small undertaking.  This will include removing FTX’s logo from the arena’s roof, the basketball court, entrances into the stadium, and even the logo from the polo shirts worn by security.[12]

While a naming rights deal of this magnitude being terminated so quickly into its term is surprising, it is not unheard of.  Remember Enron?  Several years before the Houston-based energy company’s massive collapse in the early 2000s, Enron entered a thirty-year $100 million contract with the professional baseball team, the Houston Astros, to acquire naming rights to their stadium.[13]  Less than three years into the contract, the Astros sought to terminate the deal when the Enron scandal became household news.[14]  Unlike FTX, Enron had already paid for the year ahead.[15]  So, despite Enron’s bankruptcy filing, the company refused to consent to the Astros’ seeking a third party to replace Enron in the naming rights arrangement.[16]  Enron’s main argument was that the naming rights contract did not include a provision that allowed the Astros to terminate the contract based on the company’s bankruptcy filing.[17]  Ultimately, due to public pressure and bad optics, the Astros agreed to pay Enron’s creditors $2.1 million to buy back the naming rights in an out-of-court settlement.[18]

Miami-Dade County and the Heat avoided misfortune to the extent suffered by the Astros, as FTX was already in arrears due to a $5.5 million payment going unpaid on January 1, 2023.[19]  Beyond this, the county learned from the Astros mistake and included a provision in its contract with FTX that said in the event of a default, which included an “insolvency event,” FTX would still be liable to pay “all unpaid fees for the three contract years following the date of termination” within sixty days.[20]

An overarching question following this debacle is whether it leads to concerns for another arena that houses the professional basketball team, the Los Angeles Lakers.  The Lakers, following Miami’s lead, entered into a massive $700 million twenty-year contract for the naming rights of their arena with another crypto exchange, Crytpo.com.[21]  Miami-Dade County and the Lakers both entered into these contracts worth hundreds of millions of dollars stretching across decades with FTX and Crypto.com during the peak of cryptocurrency in 2021.[22]  Counties and professional sports organizations may have to ask, moving forward, how much consideration should go into assessing the financial creditworthiness and long-term viability of a partner in a naming rights deal?  Or are they just going to continue to ask, who can show me the money?

All in all, while dealing with this fractured partnership has assuredly been tough on Miami-Dade County and its residents, at the very least, they may find some solace knowing that Madonna will be performing at Miami-Dade Arena later this year.[23]

[1] Ryan Browne, Collapsed Crypto Exchange FTX Owes Top 50 Creditors Over $3 Billion, New Filing Says, CNBC (Nov. 21, 2022, 9:34 AM), https://www.cnbc.com/2022/11/21/collapsed-crypto-exchange-ftx-owes-top-50-creditors-3-billion-filing.html

[2] Dean Budnick, Miami Terminates FTX Arena Naming Rights Deal Following Crypto Exchange’s Bankruptcy, Variety (Jan. 15, 2023, 2:00 PM), https://variety.com/2023/music/news/ftx-arena-miami-naming-rights-terminated-bankruptcy-1235490252/; Christina Vazquez, Companies Already Inquiring with Miami-Dade County, Miami Heat Regarding Arena Naming Rights Deal, Local 10 (Jan. 17, 2023, 6:21 PM),  https://www.local10.com/news/local/2023/01/17/companies-already-inquiring-with-miami-dade-county-miami-heat-regarding-arena-naming-rights-deal/

[3] Budnick, supra note 2.

[4] Id.; Budnick, supra note 2.

[5] Miami-Dade County and Miami Heat Statement on FTX, NBA.com (Nov. 11, 2022, 6:47 PM), https://www.nba.com/heat/news/miami-dade-county-and-miami-heat-statement-on-ftx

[6] Budnick, supra note 2.

[7] Id.

[8] Julia Musto, FTX Bankruptcy Judge Terminates Miami Heat Arena Naming Rights Deal, Fox Bus. (Jan. 11, 2023, 2:38 PM), https://www.foxbusiness.com/economy/ftx-bankruptcy-judge-terminates-miami-heat-arena-naming-rights-deal

[9] Id.

[10] Id.

[11] Judge Terminates FTX Naming Rights Deal for Miami Heat Arena, CBS News (Jan. 11, 2023 9:32 PM), https://www.cbsnews.com/news/ftx-miami-heat-arena-naming-rights-deal-terminated/

[12] Id.

[13] Charles Bowles & Ed Flynn, Sports Stadiums: What’s in A Name?, Am. Bankr. Inst. J., July 2015, at 38, 38 (2015).

[14] Id. at 39.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Judge terminates FTX naming rights deal for Miami Heat arena, supra note 11.

[20] Sam Reynolds, FTX Owes Miami $16.5M For Arena Sponsorship Cancellation, CoinDesk (Nov. 12, 2022, 1:07 AM), https://www.coindesk.com/business/2022/11/12/heres-how-much-ftx-owes-miami-after-arena-sponsorship-cancellation/

[21] Ronald D. White, FTX’s Downfall Casts a Shadow Over Other Sports-Rights Deals. What’s Up, Crypto.com Arena, L.A. Times (Nov. 18, 2022, 5:00 AM), https://www.latimes.com/business/story/2022-11-18/ftx-was-a-sports-sponsorship-mvp-its-collapse-is-roiling-the-sports-marketing-world

[22] Id.

[23] Madonna Announces ‘The Celebration Tour’, Madonna.com (Jan. 17, 2023), https://www.madonna.com/news/title/madonna-announces-the-celebration-tour.

By: Natalie Galdos

College football is coming back to EA Sports.[1]  Daryl Holt, EA Sports vice president and general manager, announced Feb. 2, 2021 that EA Sports will revive its college football video game series.[2]  While Holt declined to share any timeline for the arrival of the next installment of the college football series, fans are looking forward to the game’s release, which previously sold millions of copies worldwide.[3]  The new game, EA Sports College Football, will be the beloved franchise’s first college football title since EA discontinued the NCAA Football franchise in 2013.[4]  EA Sports previously cited an ongoing class-action legal dispute with ex-athletes over using their likeness without compensation as the reason for the cancellation after a class action lawsuit,[5] O’Bannon v. NCAA.[6]

Ed O’Bannon, a former All-American basketball player, was depicted in an EA Sports college basketball video game.[7]  Because the NCAA has long held that college athletes are by definition “amateurs” and cannot profit in any way from their status as student-athletes, O’Bannon never consented to the use of his likeness in the video game, and he was not compensated for it.[8]  Thus, in 2009, O’Bannon sued the NCAA and the Collegiate Licensing Company, the entity which licenses the trademarks of the NCAA and a number of its member schools for commercial use, in federal court.[9]  EA Sports and the Collegiate Licensing Company settled in 2014 for $40 million.[10]  Without active licensing agreements, EA Sports had to stop all distribution of its college sports video games.[11]  This time, however, EA Sports stated the new game would not include names, images, or likeness (“NIL”) of any student-athletes.[12]  By using generic players, EA Sports hopes to sidestep the hot-button issue of NIL rights and compensation.[13]  However, with a new Supreme Court case on the horizon, EA Sports’ plans could all change.

On March 31, 2021, the Supreme Court will hear arguments for Alston v. NCAA[14] which is an NCAA case on student-athlete compensation.[15]  Former and current college athletes argue the NCAA’s rules restricting on education-related benefits, violated antitrust law under the Sherman Act.[16]  In Alston, the district court found for the athletes, holding that the NCAA must allow for certain types of academic benefits, such as “computers, science equipment, musical instruments and other tangible items not included in the cost of attendance calculation but nonetheless related to the pursuit of academic studies.”[17]  The U.S. Court of Appeals for the Ninth Circuit affirmed, recognizing the NCAA’s interest in “preserving amateurism,” but concluding that the NCAA’s practices violated antitrust law.[18]  Further while the Alston litigation has been ongoing, six states have passed legislation addressing an athlete’s ability to receive compensation for use of their NIL, and more than two dozen other states are considering similar bills.[19]

If the Supreme Court decides that the NCAA’s amateurism rules violate federal antitrust law, this could allow for student-athletes to be compensated by anyone for their NIL.  Further, if this decision is upheld, EA Sports’ plan not to use the NIL of existing college players may all change.

Since EA Sports is willing to pay athletes from years ago for use of their NILs, Alston may immediately open the door for current athletes to profit directly from video games.[20]  From EA Sports’ perspective, it would be beneficial to integrate real college players in its games.  For example, NCAA Football 13 and 14 featured Robert Griffin III and Denard Robinson, respectively.[21]  Both players were already in the NFL when their respective video games were released.[22]  Thus, EA Sports was willing to put them on the cover of their video game because their time at Baylor and Michigan was “still fresh enough in the collective memory[.]”[23]  The connection to real players can allow EA College Sports to go back to its dominance in the college football gaming world.

Overall, the best decision for the Supreme Court may be to reaffirm the Ninth Circuit as a win for college athletes and EA Sports.  The Supreme Court could rule that student-athletes may never be paid a salary for playing, but could receive the compensation they deserve through signing autographs, marketing deals and other forms of pay for being a brand.[24]  In this model, the NCAA can still benefit because this structure can still follow the NCAA’s amateurism requirement of no “pay for play.”  Here, nobody would pay the athlete to play; EA Sports or any other video game is simply paying for their brand and likeness.  Therefore, affirming the Ninth Circuit would provide the most benefit to the student-athletes and the gaming community as a whole so that companies like EA Sports can bring back the video games as we know and love them.

[1] Michael Rothstein, EA Sports to do College Football Video Game, ESPN (Feb. 2, 2021), https://www.espn.com/college-football/story/_/id/30821045/school-plan-ea-sports-do-college-football.

[2] Id.

[3] Id.

[4] Zoe C. Jones, EA Sports Revives its College Football Video Game—But it Won’t Include Real Student-Athletes, CBS News (Feb. 2, 2021, 4:48 PM), https://www.cbsnews.com/news/ea-sports-college-football-game-its-happening/.

[5] Tony Manfred, EA Sports Cancels its College Football Video Game Amid a Wave of Lawsuits, Bus. Insider (Sept. 26, 2013, 4:34 PM),  https://www.businessinsider.com/ea-sports-cancels-ncaa-football-videogame-2013-9.

[6] 802 F.3d 1049 (9th Cir. 2015).

[7] Id. at 1055.

[8] Id. at 1054–55; see also Kat Bailey, How EA Is Bringing Back College Football and Sidestepping the NCAA’s Biggest Problems, Vice (Feb. 5, 2021, 10:49 AM), https://www.vice.com/en/article/epd85k/ea-ncaa-college-football-despite-obannon-lawsuit.

[9] O’Bannon, 802 F.3d at 1055.

[10] Mike Hume & Rick Maese, EA Sports Revives College Football Franchise as Courts Mull NCAA’s Stance on Amateurism, Wash. Post (Feb. 2, 2021, 12:00PM), https://www.washingtonpost.com/video-games/2021/02/02/ea-sports-college-football/.

[11] Id.

[12] Jones, supra note 4.

[13] Hume & Maese, supra note 10.

[14] Petition for Writ of Certiorari, NCAA v. Alston, 208 L.Ed.2d 504 (U.S. 2020) (No. 20-512), 2020 WL 7366281.

[15] NCAA Case on Athlete Compensation Set For Supreme Court on March 31, Atlantic (Feb. 1, 2021, 12:01 PM), https://theathletic.com/news/ncaa-athlete-compensation-supreme-court/9Zgc5xkjnWHx.

[16] Melissa Quinn, Supreme Court Takes up NCAA Antitrust Dispute Over Compensation for College Athletes, CBS News (Dec. 16, 2020, 11:09 AM),  https://www.cbsnews.com/news/supreme-court-ncaa-case-athlete-compensation/.

[17] In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1088 (N.D. Cal. 2019).

[18] Alston v. NCAA, 958 F.3d 1239, 1243 (9th Cir. 2020); Quinn, supra note 16.

[19] Hume & Maese, supra note 10.

[20] Bailey, supra note 8.

[21] Id.

[22] Id.

[23] Id.

[24] Hayes Rule, A Breakdown of Alston v. NCAA, Medium (May 4, 2019), https://medium.com/the-bearfaced-truth/a-breakdown-of-alston-v-ncaa-what-is-the-future-of-paying-college-athletes-3483569905b4

By Blake Witty

This Sunday, nearly one in three Americans[1] will turn to their televisions to watch Patrick Mahomes and the Kansas City Chiefs take on Tom Brady and the Tampa Buccaneers in Super Bowl LV.[2]  The Super Bowl has become a mainstay in American culture and is arguably the most followed and prestigious event on the American sports calendar.  Being such a massive event, one would expect that many small businesses would try to use the Super Bowl name to attract football fans and customers alike to events.  However, this is not the case because of the National Football League’s (“NFL”) aggressive defense of the trademarked phrase “Super Bowl.”[3]  This blog post will look at the NFL’s recent history showcasing its fervent desire to protect its trademark and also explore whether the NFL actually has the right to go as far as it does (and if it’s even worth it for them).

The NFL has had the Super Bowl trademark since 1969 and has sent many cease and desist letters to businesses allegedly violating the trademark over the years.[4]  The most prominent example of the NFL flexing its trademark muscle was all the way back in 2007 when the League sent a cease and desist letter to the Fall Creek Baptist Church in Indianapolis, which caused the church to cancel their event.[5]  The League claimed the church was violating NFL rules because the church was charging patrons $3 to come watch the game.[6]  While the NFL has since eased its protocols by allowing places of gathering to use the Super Bowl moniker, these places of gathering still cannot charge admission fees to events that are advertised with the phrase “Super Bowl.”[7]

There have also been examples of the NFL having success in court in restraining suppliers from using its intellectual property, including the Super Bowl trademark.  For example, in NFL Properties, LLC v. Does 1 Through 100[8], the NFL successfully obtained permission by the court to seek a seize and desist order to stop the defendants from selling counterfeit merchandise and tickets with NFL trademarks ahead of Super Bowl 50.[9]  More recently, in NFL Properties, LLC v. Does 1–200[10], the NFL was granted a temporary restraining order, seizure order, and order to show cause when the defendants were also purported to be planning to sell counterfeit merchandise and tickets that bore NFL trademarks, including the Super Bowl trademark, ahead of last year’s Super Bowl.[11]  Further, in NFL Properties, LLC v. Humphries[12], the NFL won a default judgment to dispose of, once again, counterfeit items that bore NFL trademarks.[13]  Finally, in Titlecraft, Inc. v. NFL Properties, LLC[14], the NFL was granted a motion for summary judgement when a company manufactured custom wood trophies that were too similar in appearance to the legendary Vince Lombardi trophy awarded to each Super Bowl champion.[15]  The court held the aspects of the two trophies were similar enough to grant the NFL summary judgment for copyright infringement.[16]  While these cases are not centered on the issue of use of the NFL’s Super Bowl trademark by small businesses, they do show one thing: the NFL has had its share of successes in court in regard to protecting its trademarks.

Even considering all of these successes, how far can the NFL really go to protect its trademarks, especially the Super Bowl trademark?  Some commentators argue that the NFL can go quite far, while others are not as convinced.  For example, one commentator advises to not use the words “Super Bowl” at all to promote a business or watch party and to not use the names of the teams competing in the game to advertise.[17]  Another asserts that bars and restaurants should not use “Super Bowl” to advertise their showings of the game and that sweepstakes or giveaways should also avoid using it.[18]  Yet others think the NFL has really strayed out of bounds.[19] One article argues that one cannot trademark factual information and the NFL would only have a trademark infringement claim if a company claimed endorsement from the NFL or used the phrase “Super Bowl” in a very vague way.[20]  For example, few would suspect that a small bar that advertised a Super Bowl watch party is actually sponsored by the NFL.[21]  This potential confusion is what trademarks are truly intended to protect against.[22]  It is also important to note that there is a trademark concept called “nominative fair use.”[23]  Under this doctrine, a trademarked phrase or logo is permissible to use as long as there is no suggested relationship between the advertiser and the trademark’s owner.[24]  That is why this post and all these other articles are able to use the Super Bowl name.[25]  Maybe these small businesses or bars could also use this doctrine to argue for the use of the Super Bowl name. These small businesses or bars perhaps could say that there is no way a person could reasonably believe that the business or bar was sponsored by the NFL. The NFL would definitely object to this, but it could be an interesting argument.

So what’s the actual answer here?  Does the NFL have as broad of trademark rights as it purports, or does it have a weaker case than it lets on?  It appears to me that the NFL likely does have a ton of latitude. Much of the reasoning behind this conclusion is that a small restaurant or bar would likely need to assert its trademark use defense in court: a tall ask given the NFL’s vast legal team.[26]  As one commentator puts it: “any small business owner would be an eleventy-billion-point underdog in a courtroom match-up.”[27]  So while there could potentially be a case, the NFL’s legal resources in addition to their past court successes make any legal challenge difficult.

But there is also the question, is all this even worth it for the NFL? Instead of using the Super Bowl name to advertise, many companies have come up with their own slogans, the most common of which is probably “The Big Game.”[28]  Further examples include Budweiser using the term “Bud Bowl”[29] or Animal Planet using “Puppy Bowl.”[30]  Fans and consumers clearly know what is being referenced and these phrases are not trademarked so there is no infringement.  There is also a risk of bad publicity if the NFL keeps sending cease and desist letters to small businesses and churches.[31]

So should the NFL actually care about its Super Bowl trademark as much as it does?  They probably still should.  For example, if the NFL allows one small company to use the Super Bowl name, this single snowflake could form a snowball in which others want to use the name, leading to an avalanche that the NFL might not be able to stop.[32]  And again, with the NFL having such a large amount of legal resources[33], it probably is not that much of an inconvenience.  To top it off in regard to any bad publicity: the NFL probably does not “care about a few fans who get annoyed.”[34]

Thus, the answer to our overall question is yes, the NFL probably does have the latitude to defend its Super Bowl trademark as much as it does (or it at least has the resources to defend its actions) and yes, all this is probably worth it for the NFL.  So if you are thinking about hosting a watch party at your local bar or planning some sort of gathering for the game in which you’ll charge admission, it might be a good idea to not use the name “Super Bowl.”  Just like all of us, the NFL is watching.

[1] Helen Coster, Super Bowl TV Audience Rises Slightly to 99.9 Million Viewers, Reuters (Feb. 3, 2020, 3:19 PM), https://www.reuters.com/article/us-football-nfl-superbowl-ratings/super-bowl-tv-audience-rises-slightly-to-99-9-million-viewers-idUSKBN1ZX2LI.

[2] Cody Benjamin, 2021 Super Bowl Sunday: Everything to Know About Super Bowl LV with Time, TV, Odds, How to Watch and More, CBS Sports (Feb. 2, 2021), https://www.cbssports.com/nfl/news/2021-super-bowl-sunday-everything-to-know-about-super-bowl-lv-with-time-tv-odds-how-to-watch-and-more/.

[3] James Leggate, NFL’s Super Bowl Trademark Is Why Some Companies Call It ‘The Big Game’, Fox Business (Jan. 28, 2020), https://www.foxbusiness.com/markets/nfl-super-bowl-trademark-why-some-companies-call-big-game.

[4] Id.

[5] Marcus Baram, NFL Sacks Super Bowl Church Parties, ABC News (Apr. 14, 2009, 8:22 AM), https://abcnews.go.com/US/story?id=4229536&page=1.

[6] Id.

[7] Michelle Kaminsky, Super Bowl Legal Blitz: Inside the NFL’s Legendary Trademark Defense, Forbes (Jan. 30, 2018, 6:20 AM), https://www.forbes.com/sites/michellefabio/2018/01/30/inside-the-nfls-legendary-trademark-defense/?sh=37eb44203293.

[8] NFL Properties, LLC v. Does 1 Through 100, No. 16-CV-00474, 2016 WL 9223833 (N.D. Cal. Feb. 2, 2016).

[9] Id. at *1, *3.

[10] NFL Properties, LLC v. Does 1–200, No. 20-CV-20265, 2020 WL 7493120 (S.D. Fla. Jan. 28, 2020).

[11] Id. at *2–3.

[12] NFL Properties, LLC v. Humphries, No. C 16-474, 2016 WL 2606708 (N.D. Cal. May 26, 2016).

[13] Id. at *1–2, *4.

[14] Titlecraft, Inc. v. NFL Properties, LLC, No. 10-758, 2010 WL 5209293 (D. Minn. Dec. 20, 2010).

[15] Id. at *1, *4.

[16] Id.

[17] Superb Owl or Super Bowl Trademarks, Intell. Prop. Ctr. (Feb. 1, 2019), https://theipcenter.com/2019/02/superb-owl-or-super-bowl-trademarks/.

[18] Wilkinson Barker Knauer, LLP, As Super Bowl Approaches, Advertisers Should Be Aware of the NFL’s Efforts to Protect Its Golden Goose – 2018 Update on Super Bowl Advertising and Programs, Lexology (Jan. 11, 2018),  https://www.lexology.com/library/detail.aspx?g=86464d4b-5b77-4bb8-ad2a-12f9a7204d71.

[19] Timothy Geigner, It’s That Time of Year: No, the NFL Can’t Stop Every Business From Using ‘Super Bowl’ in Every Instance, Techdirt (Jan. 31, 2020, 9:34 AM), https://www.techdirt.com/articles/20200130/10363443827/that-time-year-no-nfl-cant-stop-every-business-using-super-bowl-every-instance.shtml.

[20] Id.

[21] Kaminsky, supra note 7.

[22] Id.

[23] Wilkinson Barker Knauer LLP, supra note 18.

[24] Id.

[25] Leggate, supra note 3.

[26] Kaminsky, supra note 7.

[27] Id.

[28] Geigner, supra note 19.

[29] Leggate, supra note 3.

[30] About Puppy Bowl, Animal Planet, https://www.animalplanet.com/tv-shows/puppy-bowl/about (last visited Feb. 2, 2020).

[31] Baram, supra note 5.

[32] Leggate, supra note 3.

[33] Kaminsky, supra note 7.

[34] Baram, supra note 5.

Post image of quarterbacks Patrick Mahomes and Tom Brady created by Wake Forest Law Review Online staff using official NFL imagery, courtesy www.nfl.com.

Caster Semenya celebrates her silver medal at the London 2012 Olympic games. Original photo by Jon Connell, via flickr.

By Kelsey E. Rector

South African runner Caster Semenya is a two-time Olympic gold medalist and has dominated track events like the 800 meter and other mid-distance races over the last decade.[1] All her life, Semenya has been questioned about her sex, especially with respect to competing as an elite female track athlete.[2] Her performance came under fire because Semenya, who was raised as a woman, presents as a woman, and identifies as a woman, has differences in sex development (“DSD”) which cause her body to naturally produce more testosterone than the average female.[3] DSD has many potential causes,[4] but in the most general terms, means that a person has an “atypical development of their chromosomal, gonadal, and/or anatomic sex.”[5]

In competitive sports which rely on gender binaries to group athletes for fair competition, one of the major issues has been to determine how to handle challenges that DSD women are not “female” for the sake of competition.[6] As a result, the recent solution by World Athletics (formerly the International Association of Athletics Federations, or “IAAF”) has been to adopt new rules to protect fair competition which would require DSD women, who are considered “relevant athletes,” to regulate their elevated testosterone levels or bar them from competing in certain women’s track events.[7]

Last month, Semenya lost her appeal challenging the World Athletics regulation which prohibits certain athletes with elevated testosterone levels from competing as females in specified track events.[8]

The regulations set forth by World Athletics state that “relevant athletes,” like Semenya, are barred from competing in restricted events, such as the women’s 800 meter, unless they reduce their blood testosterone to a level of less than five nmol/L for at least six months and sustain it thereafter to maintain eligibility.[9] Similar regulations were proposed by the IAAF in 2014, but when challenged the IAAF failed to produce enough scientific evidence to justify the necessity of the regulation.[10] Despite conflicting studies regarding whether increased testosterone even provides a significant competitive advantage for DSD athletes, the IAAF proposed the current regulations and claimed that they were essential to preserving fair competition for women.[11]

Semenya filed a claim against IAAF in the Court of Arbitration for Sports (“CAS”), claiming that the DSD regulations were “unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution . . . .”[12]

There are several issues with regulations such as these. First, the regulation explicitly targets those individuals who do not fit within a convenient, traditionally defined, binary division of sex. The regulation applies to DSD individuals, but not non-DSD women who may also naturally produce testosterone at high levels.[13] Second, the regulation only applies to certain track events and not to other sports or events.[14] It is interesting to note that the events in the restricted category are restricted to those events in which identified DSD athletes compete in the most significant numbers, but not to those where the performance gap between DSD women and non-DSD women was the widest.[15] Third, and perhaps most troubling, the regulation requires artificial lowering of natural testosterone levels—which can have side effects—in order for an athlete to compete as a woman.[16] We do not ask Michael Phelps to shorten his ridiculously long arms for fair competition, nor do we question Usain Bolt’s long legs in men’s racing—so is it even appropriate to regulate naturally produced hormones which may only give athletes a slight advantage?[17]

Following arbitration, CAS found that the DSD regulations were discriminatory, but upheld them because the regulations were “a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics and upholding of the ‘protected class’ of female athletes in certain events.”[18] The court noted several concerns with the regulations, such the potential for compromising athletes’ confidentiality, the ability of the IAAF to practically apply the regulations, risks to athletes’ health from hormonal treatment, and the inclusion of certain events (the 1,500 meter and 1 mile) as restricted events.[19] The court implied that it was not its place to determine whether a different regulation could be implemented that was more fair and less discriminatory.[20] Instead the court stated that its role was limited to evaluating the regulation as presented in order to determine if it was necessary, reasonable, and proportionate.[21]

Following the CAS decision, the World Medical Association (“WMA”) released a statement encouraging doctors not to take part in implementing the regulations.[22] Specifically, the WMA president stated, “We have strong reservations about the ethical validity of these regulations. They are based on weak evidence from a single study, which is currently being widely debated by the scientific community.”[23] Nevertheless, the regulation was upheld on appeal by the Swiss Federal Supreme Court.[24]

The Swiss Court stated that it could only evaluate “whether the CAS decision violates fundamental and widely recognized principles of public order.”[25] The court determined that fairness in sport was a legitimate concern and that DSD athletes were not being forced to undergo examinations or treatment.[26] While technically the court is correct that athletes aren’t being forced into evaluation or treatment, if an athlete withholds her consent, she will be barred from competing.[27] That doesn’t exactly seem like a fair choice.[28]

So what comes next? First, given the concerns expressed in the CAS opinion, there may be challenges to the application of the DSD regulation once it starts to be enforced.[29] For example, an athlete who agrees to adjust her testosterone levels through hormone treatment may not be able to consistently keep them at the required level throughout her eligibility period.[30] If World Athletics chooses to enforce the policy anyway, that athlete would have a strong argument that she attempted to follow the regulation and that it would be unfair to bar her from competition for fluctuating testosterone levels.[31] In the meantime, Semenya will likely take her case to the European Court of Human Rights to determine “whether demanding women with intersex variations to change their natural bodies as eligibility condition for a certain sport events conforms to the European Convention on Human Rights.”[32]

[1] Athlete Profile: Caster Semenya, World Athletics, https://worldathletics.org/athletes/south-africa/caster-semenya-14330057 (last visited Oct. 20, 2020) (showing races won, current season times, world ranking, and other statistics).

[2] Robyn Dixon, Gender Issue Has Always Chased Her, L.A. Times (Aug. 21, 2009), https://www.latimes.com/archives/la-xpm-2009-aug-21-fg-south-africa-runner21-story.html. See also Erin Buzuvis, Caster Semenya and the Myth of a Level Playing Field, 6 Modern Am. 36 (2010) (discussing how Semenya’s voice, musculature, and speed provoked questions about her gender after she won the 800m at the World Championships in 2009).

[3] See Sofia Christensen, Semenya Lawyer Prepares Testosterone Rule Challenge in European Court, Yahoo News (October 1, 2020), https://sports.yahoo.com/semenya-lawyer-prepares-testosterone-rule-142841526.html.

[4] DSD is a term encompassing a variety of conditions including but not limited to: 46 XX congenital adrenal hyperplasia, 5-alpha reductase deficiency, Klinefelter syndrome (47 XXY), Swyer syndrome (46 XY gonadal dysgenesis), and Androgen insensitivity syndrome. Kyla Boyse, Disorders of Sex Development (DSD) Resources, Mich. Med. (updated Nov. 2012),  https://www.med.umich.edu/yourchild/topics/dsd.htm.

[5] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 110–11 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[6] See generally Maayan Sudai, The Testosterone Rule—Constructing Fairness in Professional Sport, 4 J. L. & Biosciences 181, 182 (2017) (stating that the issue of sex classification has plagued professional sport authorities since at least 1968).

[7] See World Athletics, Eligibility Regulations for the Female Classification, 2 (effective Nov. 2019) https://www.worldathletics.org/download/download?filename=656101dc-7716-488a-ab96-59d37941e9ac.pdf&urlslug=C3.6%20-%20Eligibility%20Regulations%20for%20the%20Female%20Classification; Testosterone Rules for Female Athletes ‘Unscientific’, BBC (Mar. 21, 2019), https://www.bbc.com/news/health-47640359.

[8] George Ramsay & Jill Martin, Caster Semenya Loses Appeal in Swiss Court over Restriction of Testosterone Levels, CNN (Sept. 9, 2020), https://www.cnn.com/2020/09/09/sport/caster-semenya-ruling-athletics-spt-intl/index.html; Lena Holzer, The Decision of the Swiss Federal Supreme Court in the Caster Semenya Case: A Human Rights and Gender Analysis, Opinio Juris (Sept. 30, 2020), http://opiniojuris.org/2020/09/30/the-decision-of-the-swiss-federal-supreme-court-in-the-caster-semenya-case-a-human-rights-and-gender-analysis/; Sean Ingle, Caster Semenya’s Olympic Hopes Fade as Runner Loses Testosterone Rules Appeal, The Guardian (Sept. 8, 2020), https://www.theguardian.com/sport/2020/sep/08/caster-semenya-loses-appeal-against-world-athletics-testosterone-rules.  

[9] World Athletics, supra note 7, at 4–5. The regulations define relevant athletes as those with listed DSDs, testosterone levels higher than five nmol/L, and who have androgen sensitivity allowing the testosterone to have an androgenizing effect. Id. at 4. Restricted events currently include the women’s 400 m, 400 m hurdles, 800 m, 1,500 m, and 1 mile. Id.

[10] See Alexandria Adkins, Comment, Trapped in the Binary Divide: How Forced Contraceptives Violate the World Anti-Doping Code, 35 Am. U. Int’l L. Rev. 531, 542–43 (2020). These regulations required hyperandrogenic females to reduce natural testosterone levels through the use of oral contraceptives. Id. at 542.Dutee Chand, a hyperandrogenic sprinter from India successfully challenged the necessity, reasonableness, and proportionality of the regulations. Id. at 543.

[11] Sudai, supra note 6, at 186–89.

[12] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 2 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[13] Adkins, supra note 10, at 561.

[14] Id. at 562.

[15] Semenya, CAS Case No. 2018/0/5794, at 156.

[16] Adkins, supra note 10, at 556.

[17] Matt Butler, Nobody Asked Bolt to Shorten His Legs or Phelps to Shrink His Feet, so Why is Caster Semenya Being Told to Reduce Her Testosterone?, i News (Sept. 16, 2020), https://inews.co.uk/sport/athletics/caster-semenya-iaaf-testosterone-cas-sebastian-coe-260629. But see Malcom Gladwell & Nicholas Thompson, Caster Semenya and the Logic of Olympic Competition, New Yorker (Aug. 12, 2016), https://www.newyorker.com/sports/sporting-scene/caster-semenya-and-the-logic-of-olympic-competition (rationalizing the regulations by stating that these are different types of advantages, and that testosterone places Semenya outside the protected class of women).

[18] Semenya, CAS Case No. 2018/0/5794, at 160.

[19] Id. at 152–160.

[20] Id. at 160.

[21] Id.

[22] WMA Reiterates Advice to Physicians not to Implement IAAF Rules on Classifying Women Athletes, World Med. Ass’n (May 2, 2019), https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/.

[23] Id.

[24] Press Release, Swiss Fed. Sup. Ct., DSD Regul.: Caster Semenya’s Appeal against the Decision of the Ct. of Arb. for Sport Dismissed (Sept. 8, 2020). The court opinion is in French (which I do not speak), as such I cite to the Press Release which was released in English. The case citation is: Tribunal Fédéral [TF] [Federal Supreme Court] Aug. 25, 2020, 4A_248/2019 (Switz.).

[25] Press Release, Swiss Fed. Sup. Ct., supra note 24.

[26] Id.

[27] World Athletics, supra note 7, at 5.

[28] Holzer, supra note 8.

[29] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/0/5794, 158–59 (Ct. Arb. Sport 2019).

[30] Id.

[31] Id.

[32] Holzer, supra note 8.

Florida State Head Coach Mike Norvell leads the Seminoles onto the field prior to their first—and, so far, only win—of the season, Oct. 3, 2020. Photo Courtesy Ross Obley, Seminoles.com.

By Jonathan Carter

The 2020–21 NCAA football season is shaping up to be much different than seasons past,[1] and a recent rule change recommended by the NCAA Division I Football Oversight Committee (“Oversight Committee”) could result in coaches with losing records benefiting from the disarray.[2] Due to COVID-19, currently only 112 of the 130 total Football Bowl Subdivision (“FBS”) teams are playing to compete in forty-one scheduled bowl games.[3] To play in a bowl game, an FBS team usually must first satisfy the NCAA requirements governing bowl eligibility by becoming a “deserving team.”[4] Most importantly, the team must have “won a number of games against [FBS] opponents that is equal to or greater than the number of its overall losses.”[5] This rule mandates that an FBS team have a win-loss record equal to or greater than 50 percent before becoming eligible to play in a bowl game.[6]

With many schools’ football teams sitting this season out, it is likely impossible that enough FBS teams will satisfy this traditional bowl eligibility requirement.[7] Current NCAA rules provide exceptions in the event that there are not enough eligible teams to fill every bowl slot, but these exceptions are generally based on a team’s academic—rather than athletic—performance.[8] In response to the novel circumstances created by COVID-19, the Oversight Committee recently recommended the removal of normal bowl eligibility requirements for the 2020–21 bowl season.[9] This recommendation would eliminate the current win-loss record requirement, but must first be approved by the Division I Council, which is scheduled to meet on Oct. 13–14.[10]

Consequently, if approved, the rule change could have a direct impact on whether FBS coaches with losing records are entitled to receive additional compensation from their universities. In addition to a fixed salary, college coaching contracts frequently include bonus provisions that entitle a coach to additional compensation if certain on-field or off-field events occur.[11] While off-field performance bonuses are generally conditioned on the academic performance of the coach’s players, on-field performance bonuses are related to the team’s athletic accomplishments during the season.[12] The specific terms of coaches’ contracts vary, but a college coaching contract might condition the payment of on-field bonuses on: the team winning a specified number of games, the team playing in or winning a national championship, or the coach winning a national coach of the year award.[13]

Moreover, most FBS college coaching contracts contain an on-field bonus provision that entitles a coach to additional compensation if the team appears in a bowl game.[14] This reflects the university’s goal to incentivize the coach to win games and is consistent with the current trend of paying coaches significantly more for their services.[15] The economic justification for this trend is premised on the idea that teams who win games and play in bowl games gain national notoriety and generate more athletic revenue for the university.[16] As a result, universities and FBS coaches who entered into coaching contracts that include on-field bowl game bonus provisions did so under the assumption that the coach would at least have to satisfy the traditional NCAA bowl eligibility rules to receive that bonus.[17] The Oversight Committee’s new recommendation, however, would make this assumption false by allowing FBS teams with losing records to play in bowl games.[18] Ultimately, the recommendation’s effect will be determined by a football team’s win-loss record and the language of the bowl game bonus provision found in the coach’s contract.

To illustrate, Mike Norvell was hired to coach the Florida State Seminoles football team in December 2019.[19] Among other on-field performance bonuses contained in his agreement, Norvell is entitled to receive at least $100,000 if the Seminoles play in any bowl game while under Norvell’s direction as head coach, regardless of the team’s record or ranking.[20] The Seminoles currently have an overall win-loss record of 1–3[21] and have yet to face many talented ACC opponents listed on their schedule.[22] In a normal NCAA football season, if the Seminoles were to finish the regular season with a losing record they would almost certainly be ineligible to play in a bowl game.[23]

If the Oversight Committee’s recommendation is approved, the Seminoles could remain bowl eligible with a losing record and play in one of the forty-one scheduled bowl games.[24] This unprecedented outcome would entitle Norvell to receive an additional $100,000 on top of his approximately $4 million annual salary for what many would consider an unsuccessful season.[25] Interestingly, Norvell’s bonus provision is similar to that of many other major college football coaches including UCLA’s Chip Kelly,[26] Alabama’s Nick Saban,[27] and Texas A&M’s Jimbo Fisher,[28] in that their contracts entitle them to receive a bonus simply because they are the head coach of a team that appears in a bowl game.

Other coaching contracts, however, may avoid this result because of qualifying language in the bonus provision that requires the team to win a specified number of regular season games in addition to playing in a bowl game. For example, under the “bowl participation” bonus provision of the University of Oregon’s football coach, Mario Cristobal, his team “must have at least 7 regular season wins” for him to receive a $100,000 bonus for appearing in a bowl game.[29] Similarly, Clemson’s football coach, Dabo Sweeny, is only entitled to receive $50,000 for playing in a bowl game if his team also wins “eight or more regular season games.”[30] Thus, these universities have insulated themselves from the potential effect of the Oversight Committee’s recommendation by requiring their team to win a majority of their regular season games.

Historically, putting together a winning season was the first step an FBS coach was required to take before receiving any bonus for a team’s on-field performance. Among many other changes, COVID-19’s impact on college football has put this requirement into question. If the Oversight Committee’s recommendation is accepted by the Division I Council, FBS coaches with losing seasons could be entitled to receive bonuses from their universities for coaching in bowl games that they traditionally would not be eligible to play in.

[1] See Ivan Maisel & Adam Rittenberg, How College Football is Trying to Answer Its Biggest Return-To-Play Questions, ESPN (Jul. 1, 2020), https://www.espn.com/college-football/story/_/id/29387826/how-college-football-trying-answer-biggest-return-play-questions.

[2] See Greg Johnson, Waiving Bowl Qualification Requirements Recommended, NCAA (Sept. 24, 2020, 6:56 PM), http://www.ncaa.org/about/resources/media-center/news/waiving-bowl-qualification-requirements-recommended.

[3] David Scott, Every College Football Team is Likely Bowl Eligible in 2020. Here’s Why, What to Know, The Charlotte Observer (Sept. 22, 2020, 3:10 PM), https://www.charlotteobserver.com/sports/article245890615.html.

[4] See Nat’l Collegiate Athletic Ass’n, 2020–21 NCAA Division I Manual § 18.7.2 (2020), http://www.ncaapublications.com/productdownloads/D121.pdf [hereinafter NCAA Manual].

[5] Id.

[6] Id.

[7] David Cobb, NCAA Committee Recommends Waiving Bowl Eligibility Requirements for 2020 College Football Season, CBS Sports (Sept. 24, 2020, 8:27 PM), https://www.cbssports.com/college-football/news/ncaa-committee-recommends-waiving-bowl-eligibility-requirements-for-2020-college-football-season/.

[8] Id.; NCAA Manual, supra note 4, §

[9] Johnson, supra note 2; see also NCAA Manual, supra note 4, § (“The Division I Football Oversight Committee . . . shall have the authority to waive all postseason bowl game requirements based on objective evidence that demonstrates circumstances that warrant the waiver. . . .”).

[10] Johnson, supra note 2.

[11] Martin J. Greenberg, College Coaching Contracts Revisited, 12 Marq. Sports L. Rev. 127,  179–83 (2001); Randall S. Thomas & Lawrence Van Horn, College Football Coaches’ Pay and Contracts: Are They Overpaid and Unduly Privileged, 91 Ind. L.J. 189, 219–22 (2016).

[12] See Greenberg, supra note 11, at 179–83; Randall & Van Horn, supra note 11, at 219–22.

[13] See Randall & Van Horn, supra note 11, at 219–20; see also, e.g., Amended Coaching Contract #1 Between Mario Cristobal, Coach, and Univ. of Ore. (June 3, 2019) [hereinafter Cristobal Contract], https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Cristobal-Mario-2017-24-amendment-1.pdf; Coaching Contract Between Dan Mullen, Coach, and Univ. of Fla. 17–18 (Nov. 26, 2017), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2019/07/Dan-Mullen-Florida.pdf; Restated Coaching Contract Between Tom Herman, Coach, and Univ. of Tex. at Austin 8–9 (May 19, 2016), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2015/10/Thomas-J.-Herman-Restated-1-0-Culture-LLC-17-36122-Restated-Head-Football-Coach-Employment-Agreement.pdf.

[14] See coaching contracts cited supra note 13; see also Greenberg, supra note 11.

[15] See Richard T. Karcher, The Coaching Carousel in Big-Time Intercollegiate Athletics: Economic Implications and Legal Considerations, 20 Fordham Intell. Prop. Media & Ent. L.J. 1, 27–33 (2009).

[16] Id.

[17] See, e.g.,Randall & Van Horn, supra note 11, at 198–99.

[18] Johnson, supra note 2.

[19] Teresa M. Walker, Florida State Makes Memphis’ Mike Norvell New Head Coach, Associated Press (Dec. 8, 2019), https://apnews.com/article/38ac32d5b32b4dc3aa929e6a6b55a743.

[20] Coaching Contract Between Mike Norvell, Coach, and Fla. State Univ. 7–8 (Dec. 7, 2019) [hereinafter Norvell Contract], https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Norvell-Contract-12-11-19.pdf.

[21] Anthony Anderson, Williams, Crawford Lead No. 5 Notre Dame Past Florida State, Associated Press (Oct. 11, 2020), https://apnews.com/article/college-football-jordan-travis-kyren-williams-shaun-crawford-football-cdb11adf56ddb2ca56af9780ca4de865.  

[22] Florida State Seminoles Schedule 2020, ESPN, https://www.espn.com/college-football/team/schedule/_/id/52 (last visited Oct. 13, 2020).

[23] See, e.g.,Tim Linafelt, Clock Strikes 12 On Streaks, Noles’ Football Season, Fla. State Seminoles (Nov. 24, 2018), https://seminoles.com/clock-strikes-12-on-streaks-seminoles-season/.

[24] Johnson, supra note 2.

[25] Norvell Contract, supra note 20, at 3–4, 7–8.

[26] Coaching Contract Between Chip Kelly, Coach, and Univ. of Cal. L.A. 5 (Nov. 25, 2017), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Chip-Kelly-UCLA.pdf (providing at least $40,000 bonus for coaching in any bowl game).

[27] Second Amended and Restated Contract Between Nick Saban, Coach, and Univ. of Ala. 9 (Sep. 4, 2018), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/Nick-Saban-Alabama.pdf (providing at least $65,000 bonus for coaching in any bowl game).

[28] Coaching Contact Between Jimbo Fisher, Coach, and Tex. A&M Univ. 5–6 (Aug. 17, 2018), https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2015/10/Jimbo-Fisher-Texas-AM.pdf (providing at least $100,000 bonus for coaching in any bowl game).

[29] Cristobal Contract, supra note 13.

[30] Amended and Restated Coaching Contract Between Dabo Sweeny, Coach, and Clemson Univ. (Nov. 18, 2019) 7–8, https://2michy3wy0l30d34041dt1et-wpengine.netdna-ssl.com/football/wp-content/uploads/sites/3/2018/08/7127_SwinneyDabo_2019-1-1_CONTRACT.pdf.

By Alexander Hill

On October 29, 2019, the National Collegiate Athletic Association (the “NCAA”) announced that it would begin the process of directing its divisions to consider amendments to their bylaws to allow collegiate athletes to benefit from their names, images, and likenesses.[1] In this announcement, the NCAA stated these changes would come in a manner “consistent with the collegiate model.”[2] The NCAA’s decision follows California’s enactment of Senate Bill 206, commonly known as the “Fair Pay to Play Act” (the Act), which (upon its effective date of January 2023) will allow players to profit from their names, images, and likenesses, as well as sign agents to represent them in licensing contracts.[3] Additionally, Congress and other state legislatures are considering proposed legislation that would have similar effects as the Act.[4] However, the NCAA’s language of “consistent with the collegiate model” has an eerie similarity to the argument for restriction on amateurism that it made in O’Bannon v. Nat’l Collegiate Athletic Ass’n when it argued that compensation for college athletes goes against the “identity of college sports.”[5] In comparison to the Act, how much can the NCAA limit the athletes’ ability to profit of their name, image, and likeness?

This post addresses the extent of the legal limitations under the Sherman Antitrust Act on the NCAA when implementing these changes “consistent with the collegiate model.” It analyzes these two procompetitive factors in light of the details of the California Act, and whether the rights granted to athletes under this bill hinder these purposes to the extent that the Rule of Reason allows the NCAA to structure its own likeness compensation rules more narrowly than the Act under the Sherman Antitrust Act.

The Act allows athletes to hire agents to represent them in contracts with third parties to use the athletes’ likenesses in different ways, as well as allow the third parties to compensate the athletes in turn.[6] However, the Act restricts schools from compensating the players when they use the athletes’ likenesses themselves.[7] Additionally, athletes cannot enter into contracts if those contracts conflict with the terms of contracts entered into by the teams for which they play.[8]

To this point, the prospect of amateurism as a procompetitive factor in college sports has allowed the NCAA to refuse cash compensation for name, image, and likeness under the Sherman Antitrust Act, as evidenced by O’Bannon.[9] In O’Bannon, the Ninth Circuit Court of Appeals noted that the NCAA’s rules on player compensation are subject to the Sherman Antitrust Act and should receive the scrutiny classified as the “Rule of Reason.”[10] In the Rule of Reason analysis, the court addresses whether a restriction on trade is procompetitive, and if it is procompetitive, whether there is another way to promote the goal of the restriction in a less restrictive way.[11] In the O’Bannon case, the court found that the NCAA’s restriction on cash payments from schools to athletes for their name, image, or likeness beyond grants for educational expenses of the athlete failed the Rule of Reason analysis.[12] In its reasoning, the court noted the restriction promoted two procompetitive purposes: “preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism” and “integrating academics and athletics.”[13] The court held that third parties, specifically EA Sports, which for years had made video games based on college athletics, could not use the athletes’ likeness without compensating them.[14]

In the court’s reasoning, however, the court mainly addressed the procompetitive factor of “preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism” and did not really address the issue of “integrating academics and athletics.”[15] The court failed to address the fact that the NCAA already has in place certain eligibility requirements that require athletes to take certain kinds of classes during their tenure in school, as well as a GPA requirement that all athletes have to meet.[16] Whether or not players are compensated appears to have no bearing on the athletes’ integration into their college’s academics in any way. Where students are required to still maintain a certain level of academic achievement, an allowance for compensation would be a less restrictive alternative to restricting compensation for athletes while still maintaining the procompetitive factor of integrating athletics to academics. Therefore, allowing compensation for athletes would pass the Rule of Reason under the third prong. So, the only procompetitive factor that could be restricted would be restricting the popularity of the NCAA’s product.

When analyzing the restriction on the popularity of the NCAA’s product, the court in O’Bannon only focused on recruitment of players and payments to the players by the colleges themselves.[17] As noted above, the court held that colleges could not compensate athletes for their likenesses because it would hinder the popularity of the NCAA’s product.[18] Similar to this holding, the Act prohibited the ability of schools to pay their athletes for their likenesses.[19] So, that requirement would actually be consistent with O’Bannon. Looking at the allowance for athletes to hire agents, there is no reason why this would restrict the popularity of the sport. Applying the Rule of Reason analysis, allowing players to hire agents would not be more restrictive on the popularity of the NCAA’s product than would allowing players to earn compensation from third parties. If mandating that third parties must pay collegiate athletes for their likeness is not restrictive on this procompetitive aspect by O’Bannon, certainly allowing the athletes to hire agents to ensure they are fairly represented in a contract would meet the same standard under the Rule of Reason. So, naturally, allowing the athletes to hire agents would pass the Rule of Reason analysis and the NCAA would not be able to prevent students from being able to hire agents.

Additionally, if the court already held in O’Bannon that third parties are required to compensate the athletes[20], the requirement in the Fair Pay to Play Act that prevents the NCAA from implementing a rule prohibiting the athletes’ ability to profit off of their likeness is consistent with the holding in O’Bannon. Therefore, it appears that the allowances for athletes in the Fair Pay to Play Act are consistent with the court’s holding in O’Bannon.

In conclusion, it appears that the Fair Pay to Play Act’s grant of rights to athletes are consistent with the holding in O’Bannon, and any restriction beyond the Fair Pay to Play Act by the NCAA would be inconsistent with the ruling in O’Bannon.

[1] Board of Governors Starts Process to Enhance Name, Image and Likeness Opportunities, NCAA (Oct. 29, 2019, 1:08 PM), http://www.ncaa.org/about/resources/media-center/news/board-governors-starts-process-enhance-name-image-and-likeness-opportunities.

[2] Id.

[3] Allen Kim, California Just Passed a Law That Allows College Athletes to Get Paid, CNN (Sep. 29, 2019, 4:01 PM), https://www.cnn.com/2019/09/30/sport/california-sb-206-ncaa-trnd/index.html

[4] Michael McCann, What’s Next After California Signs Game Changer Fair Pay to Play Act into Law?, Sports Illustrated (Sep. 30, 2019), https://www.si.com/college/2019/09/30/fair-pay-to-play-act-law-ncaa-california-pac-12

[5] O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1058 (9th Cir. 2015).

[6] Fair Pay to Play Act, S.B. 206, 2019 Cal. State Senate (Cal. 2019).

[7] Id.

[8] Id.

[9] O’Bannon, 802 F.3d at 1079.

[10] Id.

[11] Id. at 1070.

[12] Id. at 1079.

[13] Id. at 1076.

[14] Id. at 1067.

[15] Id. at 1076.

[16] Id.; Amateurism, NCAA (last visited Nov. 4, 2019), http://www.ncaa.org/student-athletes/future/amateurism

[17] O’Bannon, 802 F.3d at 1076.

[18] Id.

[19] Cal. S.B. 206.

[20] O’Bannon, 802 F.3d at 1067.