Tulane Sports Law Expert Gabe Feldman Examines Current Legal Issues in Collegiate Athletics

Jan 14, 2022

LEAD1 Association, the organization representing FBS athletic departments, recently released a summary of an interview that LEAD1 President and CEO Tom McMillen, former conducted with Gabe Feldman, Director of the Tulane University Sports Law Program.

Both McMillen, also a former Congressman, and Feldman recently presented before the Knight Commission on Intercollegiate Athletics, with McMillen offering the political angle, and Feldman the legal viewpoint.

Here are some of the main takeaways from their conversation, according to LEAD1:
On NIL, according to Feldman:

  • How the NCAA enforces NIL will impact their ability to defend the principle of “amateurism” in the courts. Given the NCAA’s permissive Interim NIL policy, if the NCAA continues to allow for huge NIL deals, it will undermine their ability to defend amateurism or prohibitions on “pay for play” in the courts under antitrust law. In this vein, the Supreme Court Alston decision, Justice Kavanaugh’s concurrence specifically, makes the point that college sports should be treated more like other enterprises, and not given differential treatment based upon amateurism. For college sports to protect the collegiate model, the enterprise must focus on the academic mission as the differentiating feature from other enterprises.
  • NCAA investigations on NIL deals, like BYU and Miami, are fact determinative, but may be more of an exploratory exercise at this point.The NCAA’s Interim NIL policy does not permit compensation for work not performed by college athletes (e.g., legitimate NIL deals must be quid pro quo). The NCAA enforcement issue, therefore, is whether these “collective” NIL deals, like Miami and BYU, are legitimate and not just an “end-around” for boosters to funnel cash to athletes. Because the NCAA’s Interim NIL policy is very deregulated and generally defers to state laws where applicable, recent reports of the NCAA investigating various institutional NIL agreements may be more of an exploratory exercise to learn more about the nature of the deals, than a true investigation.
  • A “crisis” may need to occur for the Congress to get involved in college sports. As McMillen has stated, a crisis, like a college athlete suffering significant harm because of an NIL agreement, due to lack of regulatory oversight, may create the type of impetus for the Congress to get involved in college sports. Unlike the current NIL landscape, according to Feldman, professional sports are heavily regulated, including with respect to agent involvement, so the NIL landscape may be unfortunately “ripe” for some significant negative event to occur to a college athlete. 

On the employment status of college athletes, according to Feldman:

  • It is plausible that the new NCAA Division I, being charged with implementing transformative change, could factor in collective bargaining for college athletes into their rules-making considerations. DeMaurice Smith, Executive Director of the NFLPA, recently made comments that there needs to be a new model in college sports with college athletes having bargaining power but not defined as employees. He believes a conference could lead the charge by creating a College Athlete Corporation where college athletes would share in revenue and have other bargaining rights. According to Feldman, new NCAA Division I could consider modifying pay for play rules considering this possibility, particularly if athletes were to bargain for a portion of television revenue. 
  • Albeit unlikely, College Basketball Players Association recent unfair labor practice charge filing under National Labor Relations Act (NLRA) could lead to full-scale collective bargaining rights for college athletes. It is possible that the filing could lead to all college athletes being classified as employees and the NCAA, conferences, and institutions being classified as employers under the NLRA, which would mean that all college athletes would have a right to form a union and collectively bargain. According to Feldman, such collective bargaining relationship may not be such a bad thing, given that professional sports are protected under antitrust law due to being unionized (e.g., non-statutory labor exemption).