By Conner Poulin
The landscape of college athletics is rapidly evolving, with numerous changes impacting athletes. From the Johnson case to NLRB challenges and Title IX issues, the industry is constantly shifting. This makes it challenging for professionals and athletes to stay informed, especially during the season.
A few weeks ago, the Sports Lawyers Association (SLA) held its 49th annual meeting, featuring panels on various sports topics. One standout panel was “Amateur Status Considerations for Collegiate Athletes.” As someone deeply invested in the legal aspects of college sports, attending this panel was a highlight for me. Whether you missed the conference altogether or just this panel, the article will recap the key discussions.
Moderator and Panelists:
– Moderator: Peter Goplerud, author of “Sports Law: Case and Materials” and “Sports Law for Sports Management.”
– Panelists:
o Jill Bodensteiner, Vice President and Athletic Director at St. Joseph’s University
o Tarun Sharma, founder of the NIL Clinic at the University of Minnesota
o Michele Roberts, former executive director of the NBPA and the first woman to lead a professional sports union
NIL Legislation in Tennessee and Virginia:
Tennessee and Virginia have both started the process of removing the Name, Image, and Likeness (NIL) limitations for college athletes with help from each states Attorneys General and from legislation. Tennessee’s bill, which will prevent the NCAA from enforcing its NIL policy, has passed the Senate and awaits a House vote. Meanwhile, Virginia’s law, effective July 1, will allow schools to pay athletes directly for marketing appearances, though not for their participation in sports. Six (6) other states also have pending legislation, none as permissive as Virginia’s. Bodensteiner noted that schools are looking to collaborate with third parties, such as collectives and marketing agencies, to navigate these changes. However, the lack of federal rules creates confusion, and give some schools a recruiting advantage until uniform regulations are established.
The Need for Uniform Change:
All panelists agreed that college athletics is currently the “wild west” and requires uniform changes. Michele Roberts remarked, “If you’re waiting on Congress to give you something, good luck.” This sentiment reflects the general frustration with the slow pace of legislative change and the NCAA’s reluctance to act. When asked if the NCAA would ever voluntarily make a change, Tarun said they may but will not do so without safe harbor protection. Both Roberts and Sharma predicted a protracted legal process, potentially culminating in a Supreme Court decision.
Legislative Challenges:
Several legislative proposals are in play in Congress, but they all conflict and most avoid addressing athletes as employees. Sharma expressed frustration with Congress’s inefficacy, nothing that hearings have become repetitive and rarely resolve anything. This has become a vicious cycle and Bodensteiner agreed noting the discrepancy in awareness among members of Congress.
Bodensteiner then highlighted the financial strain on smaller schools if athletes were deemed employees. On the other hand, Roberts stated that she does not see how these athletes could be considered anything but employees. Roberts articulated that control is the most important issue when determining if someone is an employee. When it comes to college athletes, almost everything they do is controlled by either the NCAA or the schools they play for. From workouts to diet, from classes to majors, college athletes have little control of their lives.
Unionization and financial Implications:
Roberts believes Division One football players will soon unionize, possibly creating a divide from other athletes due to the differences in revenue. Roberts believes that one union alone will not fix the issue. Instead, she envisions a “patchwork” of unions, which could divide schools within the same conference and sports within the same school.
Bodensteiner countered by expressing that a broad determination across college athletics could harm small schools, continuing to emphasize that the St. Joseph’s men’s basketball team generates 80% of the athletics department’s revenue, not its profit. She conveyed her concerns about the financial impact on smaller schools and the potential elimination of a lot of women’s sports. She reiterated that paying all athletes could be detrimental, a point that resonates with the NCAA’s stance in Johnson.
Bodensteiner emphasized that she did not see much of a difference between the Dartmouth ruling and previous NLRB challenges. Her continued rhetoric, claiming that paying all college athletes would be a bad thing, seemed to fall on deaf ears. The logic strikes me as highly questionable. If smaller schools can barely fund its athletic departments and claim they are not profitable, then why maintain an athletic department at all? Are smaller universities and the NCAA truly asserting that they cannot remain profitable without free labor and that all decisions should therefore favor their position? This reasoning seems both circular and unreasonable.
NIL and the Transfer Portal:
Finally, the panel discussed NIL and the use of the transfer portal. Companies securing top college athletes desire exclusivity, which complicates matters when athletes transfer. For instance, Quinn Ewers transferred from The Ohio State University to the University of Texas after signing a 3-year, $1.4 million deal. So, what happens to the other party in that contract when he leaves the state to play elsewhere?
Sharma explained that while NIL deals are supposed to be separate from a school, some companies are now including a geographic radius to the deal. Essentially if a player stays in proximity to the school the contract will stay in effect. If the player decides to transfer elsewhere, the contract becomes voidable.
More and more people are soliciting athletes through social media and sending them contracts to sign. Some athletes know better to sign something like that; others tend to get themselves into precarious situations. Bodensteiner added that the stress of managing a social media presence, their studies and their sport is growing for college athletes. Some schools are beginning to offer guidance on NIL deals and “coaching” on how to deal with various issues. Michele concluded by declaring that, “financial literacy is a problem in this country [for everyone]” and that it is not just athletes that are suffering.
Conclusion:
This panel highlighted the complexity of current issues in college athletics and their rapid change. The need for uniform regulations is clear, but the path to comprehensive reform is slow and uncertain. Balancing fair compensation for athletes with the financial viability of athletic programs remains a challenge. As these debates continue, the voices of the athletes must stay central. The journey towards a more equitable model for college sports is just beginning, and its outcome will shape the future of the industry.
