Todd Scherwin is a partner and co-chair of Sports Industry Team at Fisher Phillips, a law firm recently named to the “100 Law Firms with Sports Law Practices You Need to Know About.”
The Sports Team is notable because it is comprised primarily of a diverse group of former collegiate and professional athletes dedicated to advising sports employers regarding compliance with applicable laws and regulations and managing controversies, as well as vigorously defending them before governmental, regulatory, and administrative agencies and, when necessary, in litigation.
What follows is an interview with Scherwin.
Question: From a labor and employment perspective, what do you consider to be the most challenging obstacles facing the sports industry in 2024?
Answer: From a “non-professional” sports perspective, it is the uncertainty arising from challenges to student-athlete employment status and the downstream impact a legal finding under the Fair Labor Standards Act or National Labor Relations Act that student-athletes are “employees” will have on all of college athletics. A ruling in favor of classifying student-athletes as “employees” would have a massive impact on the university-athlete relationship and entitle these new “employees” to benefits under federal and state labor laws, which would likely include the right to unionize and strike, access to unemployment and workers’ compensation benefits, liability under laws prohibiting discrimination in the workplace, disability benefits, health care, and compensation under specific wage and hour laws.
Q: What federal labor and employment laws/regulations are you watching and what might their impact be on the sports industry?
A: We are closely monitoring the Dartmouth National Labor Relations Board (NLRB) appeal, along with the proceedings against USC/Pac-12/NCAA. Either could result in an order from the NLRB that student-athletes are employees. Several pieces of federal legislation could impact this equation in either direction, but none are making any meaningful movement toward passage.
Q: College athletes are getting closer to becoming employees. What should higher education employers be watching and anticipating in this space?
A: Institutions need to start preparing now for what it means for athletes to be employees. This is not just a union issue. A finding that student-athletes are covered by minimum wage and overtime laws will impact all athletes at all levels and create significant backpay liability at every school in the country. It won’t take long for the plaintiff’s bar to start focusing litigation on all schools—public or private.
Q: How is the business of college athletics being impacted by the implementation of new Name, Image and Likeness (NIL) monetization rules? We might want to ask Brett Owens. If not here is my answer
A: That is exactly what is changing. College athletes are becoming business people and college athletics are becoming big business, not just for the schools, coaches, conferences, and networks, but also for the student-athletes who are now entrepreneurs. College athletes are staying in school longer which could create change at both the amateur and professional levels. Legal issues are arising for these NIL deals along with the university’s roles in securing them for college athletes. These changes have created increased compliance obligations for universities and athletic departments.
