Lawyers can help level the playing field for college athletes

Student-athletes are among the most gifted and talented competitors in the United States. They enhance the prestige of their schools, generate rabid fan bases, and have been the source of billions of dollars in revenue generated from the broadcasting, ticket sales and merchandising -- all while maintaining a respectable grade point average.

In any other setting, these players would have a designated seat at the financial bargaining table. Shamefully, for over 100 years, they have never been able to earn a dime from their NIL (name, image and likeness), despite some who are highly recognizable. Any honest, objective review of how our college athletes historically have been treated would certainly reveal flagrant, unforgivable fouls committed by the National Collegiate Athletic Association.

Fortunately, a chorus of change has been in the air in 2021. If athletes and their legal and professional advisors plan strategically based on results stemming from Washington, D.C., we can ebb and flow with new permanent federal guardrails and guidelines. This will surely result in fair wages, equal treatment of men and women's sports, better legal and financial protection and elevated benefits, such as health, disability, and possibly even life insurance for our college athletes.

A Crucial Memo

The National Labor Relations Board recently announced intentions to elevate the legal protections and employment status of college athletes. On Sept. 29, NLRB General Counsel Jennifer Abruzzo issued a memorandum that provided updated guidance regarding her staunch position that certain "Players at Academic Institutions" (which she noted are "sometimes referred to as student athletes"), are employees under the National Labor Relations Act and are afforded all statutory protections.

The memo further detailed that, where appropriate, she will allege that misclassifying such employees as mere "student-athletes" and leading them to believe that they are not entitled to the NLRA's protection has a negative effect on Section 7 activity and is an independent violation of Section 8(a)(1) of the act.

As a litigator who has represented and counseled college and professional athletes, teams, colleges and universities for decades, this announcement initially felt like a grand slam. In reality, it was a lead-off single. Institutions, states and lawmakers are currently drafting policies and legislation in reaction to the memo to govern long overdue pay structures for college athletes.

Score One for the Supreme Court

The NLRB memo was preceded by a key ruling that rocked college sports. In June, the U.S. Supreme Court handed down a landmark decision that set a critical precedent. In American Athletic Conference et al. v. Alston et al., 2021 DJDAR 6071 (June 21, 2021) the court unanimously sided with former college players in a longstanding dispute with the NCAA about compensation. The court found that the association cannot limit educational benefits to student-athletes and rejected the NCAA's argument that it is protected from the nation's antitrust laws. Finally, the NCAA was told in deafening language that they are no longer above the law.

This opinion illustrates how the Supreme Court has finally caught up with the times and echoes what advocates like myself have been saying all along: The NCAA has earned billions on the backs of my college athletes and their day of reckoning has arrived.

The Supreme Court's clear ruling may set a path toward college athlete unionization, (as I mentioned in my Aug. 9 article in the Daily Journal), and it was amplified even further by the NLRB's memo. Now that student athletes may be protected as employees, their colleges will be recognized as "employers" and "workplaces," and negotiations and public school athlete payments and benefits should be on the bargaining table.

If we also secure a prominent seat at the collective bargaining table, we can eliminate all the checkerboard issues and NIL laws that exist across the country.

From Earning Nil to Securing Adequate NIL

Chief among these issues is the players' ability to leverage their NIL. One must remember why this is so critical -- a mere fraction of student athletes will go on to play professionally. Some suggest less than 1% will play pro ball. Unfortunately, many athletes might only spend their time in the minor leagues or a farm club. In college, some have already reached their peak level of performance -- one most people can only dream of -- which is why it is only fair they tap into their entrepreneurial spirit and earn their fair financial share off their NIL while they can.

The NCAA has instituted an interim policy permitting players to earn compensation from their NIL until federal legislation or permanent rules are adopted. At least 22 states have NIL laws in effect and seven more have enacted laws that will go into effect between 2022 and 2025. For those of us who have worked tirelessly to get state laws passed, the momentum is finally in our direction.

Nearly all of the enacted legislation places more restrictions on student athlete endorsement contracts than the current NCAA interim rules. For example, the most common restrictions limit endorsement contracts from being tied directly to athletic performance or for "pay to come to our college." When the institutions or schools are granted the authority to impose the rules, they can restrict the use of team logos, marks and emblems.

Isn't it time our college athletes get to pick out and proudly wear the "shoes" they want to?

While the current NCAA interim rules do not restrict any specific industries from contracting with student-athletes, 14 states have laws that do; examples include alcohol, tobacco and adult entertainment. This is clearly not a free-for-all or a cash grab and there is a measured response and practical regulation that would clarify the current landscape.

Despite the restrictions and some states' unique provisions, which range from royalty payments to past student athletes to health and safety guidelines, I would rather work within these parameters and help many athletes earn their keep. It is a much better alternative to the NCAA leading the discussion and setting unreasonable rules from the outset. Why should we trust what the NCAA now suggests when for years college athletes safety and compensation fell on deaf ears?

College sports has its fans on Capitol Hill as well. Several Republican and Democratic senators have weighed in to offer their own visions of federal frameworks for governing how college athletes could be compensated. Nothing has stuck yet. The most promising bill was introduced to Congress in early 2021 by Sens. Chris Murphy (D-Conn.) and Bernie Sanders (I-Vt.). The College Athlete Right to Organize Act would allow some college athletes to unionize and classify themselves as employees. "College athletes are already treated like employees," CARO said in a way that seemed to prophesize the NLRB memo. "They provide a valuable service in exchange for compensation in the form of scholarships and grants-in-aid that they lose if they do not perform the job as specified by their colleges. This past year made this distinction even clearer, as college athletes continued to work and perform while their peers often were not on campus."

Looking Ahead

Thanks to the NLRB memo, the Supreme Court's ruling in Alston, and those of us who champion for equality at the state and federal levels, the tradition of what has essentially been indentured servitude in college athletics may be finally approaching the finish line.

For more than a century, college athletes have been told to accept their scholarships or pound sand. The opportunities to improve conditions -- on and off the field -- are emerging. If we strategize correctly, the only athletes who will pound sand are beach volleyball players and they will be fairly compensated for doing so. 