(05-13-2022 12:25 PM)DFW HOYA Wrote: (05-13-2022 12:22 PM)Big 12 fan too Wrote: Call it whatever you want, student-employee, student-contractor, student professional, would be a catalyst to seismic change, and is being ruled on soon.
Conventionally speaking, if you're not an amateur, you're able to be paid directly for you athletic talents. Doing so would greatly help solve the issues plaguing college basketball and football. CBAs are needed.
And outside the traditionalists, that tend to be the ones on message boards, athletes getting more of the revenue they bring in will have political support.
Are band members employees? Cheerleaders?
We've addressed this straw man argument that we seem to seeing a lot of lately elsewhere.
A university could choose to pay athletes, band members, cheerleaders or anyone else to be employees. Anyone could be an employee by the university's choice in theory. However, that isn't threshold issue.
Instead, the threshold issue is whether certain people are *deemed* to be employees under applicable law despite the university trying to argue that they shouldn't have employment status. Essentially, we're examining who would be deemed to be employees even when it's *not* the university's choice to do so.
On that front, athletes (at least at the Division I and II levels) are very different than band members and cheerleaders. Athletes are required to:
(1) Sign a National Letter of Intent that binds them to participate in the athletic activity at a specific university, which is an employment-like agreement;
(2) Be subject to restrictions on transferring to other universities if they want to participate in that athletic activity elsewhere, which is an employment-like non-compete restriction; and
(3) Suffer direct negative repercussions if they choose to stop participating in that activity (e.g. losing an athletic scholarship), which is an employment-like detriment.
Even band members and cheerleaders that could conceivably have scholarships tied to their participation in their activity under #3 above still wouldn't be subject to the agreement terms and restrictions under #1 and #2. No student is signing a National Letter of Intent or restricted from transferring to another university for any activity other than athletics.
That's why colleges are at risk specifically regarding athletes being deemed employees much more than virtually any other activity because they have a legal agreement regarding their activity and transfer (AKA non-compete) restrictions that don't apply to anyone else (even if they might be receiving a band/cheerleading scholarship or spending many hours per week on their activity).
This is the dilemma for colleges and the fans that bemoan that it's the Wild Wild West regarding NIL compensation and the transfer portal: the more that colleges attempt to restrict the compensation and transfer ability of athletes, the MORE likely that those athletes are going to be deemed to be employees. Essentially, if you *don't* want direct pay-for-play compensation from schools to athletes, the schools essentially *have* to allow for the Wild Wild West for NIL money and transfers to continue. Otherwise, any restrictions on player movement and compensation would in and of themselves be evidence of a deemed employer-employee relationship (and there's a pretty good case that the current restrictions on athletes would already be judged to create that employer-employee relationship if this gets litigated in court).
This is also why part of why George Kliavkoff and Greg Sankey were lobbying Congress last week on the athlete employment status issue. They're likely getting advice from their lawyers that athletes would be deemed to be employees under current applicable law (or at least close enough that they're going to get embroiled in constant litigation over the issue). As a result, the only real way to avoid that is for Congress to pass a law that effectively makes student-athletes an exception. I highly doubt that's going to work at all (as there's simply so much more support from across the entire political spectrum in favor of the athletes over the colleges here), but we'll see.