Recently, the General Counsel for the National Labor Relations Board (NLRB) sent a memo to regional offices indicating that student-athletes are considered employees under the National Labor Relations Act.

The memo from NLRB General Counsel Jennifer Abruzzo stated that “My intent in issuing this memo is to help educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences and the NCAA, about the legal position that I will be taking regarding employee status and misclassification in appropriate cases…”

What exactly does that mean, and how might it impact your student-athlete? It’s hard to know at this point.

  • Will college athletes unionize and end up being paid as employees?
  • If so, will they be prepared to pay the appropriate taxes? Will that mean the end of athletic scholarships? (Which aren’t taxed on the portions that cover educational expenses of tuition, fees, books, etc.) Could it also mean the end of Pell Grants for student-athletes?
  • If athletes at a private institution are successful in forming a union, does that mean that all athletes will need to pay union dues?
  • Could that also result in a significant reduction in donations to athletic departments from alumni and boosters that have been used to fund many sports teams and facilities?

It is important to note that the General Counsel’s memo included the statement “…it is my position that the scholarship football players at issue in Northwestern University, and similarly situated Players at Academic Institutions, are employees under the Act.” (She was referring to the National Labor Relations Act.) Therefore, she is initially referring to scholarship athletes at a private institution.

As I skimmed through different media sources after hearing about this, here are a few of the opinions that I came across:

  • Darren Heitner of Heitner Legal pointed out that the National Labor Relations Act only applies to private employers and that public colleges and universities aren’t directly impacted. However, he shared that they may be indirectly impacted as members of private entities (meaning the conferences and the NCAA).
  • Michael McCann wrote for Sportico that while Abruzzo is not a voting board member of the NLRB, she certainly does have influence over future votes by the five-member NLRB Board. He also shared that Abruzzo rejects the term “student-athlete” which has been the standard term the NCAA has used in referring to athletes at NCAA member colleges for many years.
  • University of Illinois law professor Michael LeRoy believes that Abruzzo is “…inviting a petition from players to form a union at a private institution.”

As if we haven’t had enough change over the past few months with the revision to the NCAA One-Time Transfer Rule, and the permissibility of Name, Image and Likeness opportunities, it appears there may still be more to come.

We’ll keep you updated when more specific information about this topic becomes available.

On Monday (June 21), the US Supreme Court issued a unanimous ruling against the NCAA in the case of “NCAA vs. Alston.”  This ruling addresses benefits for athletes that are related to education, but it did not specifically address the issue of Name, Image and Likeness or direct payments to athletes.

The official Supreme Court opinion is 40 pages long.  I haven’t read all of it.  As I scroll through comments on Twitter or other social media, some folks are predicting the death of the NCAA.

A summary article on the USA Today website indicates that this ruling “…specifically challenged the association’s ability to have national limits on benefits for athletes that are related to education, but more broadly had raised doubts about its ability to limit benefits at all.”

In it’s own statement regarding SCOTUS decision, the NCAA claims that “While today’s decision preserves the lower court ruling, it also reaffirms the NCAA’s authority to adopt reasonable rules and repeatedly notes that the NCAA remains free to articulate what are and are not truly educational benefits…”

In thinking about yesterday’s ruling, the predominant thought I have is that this decision seems to create more questions than it answers.

While I think most of us can agree that this ruling is focused on NCAA Division I sports and the athletes that compete in those “high profile” sports, this ruling simply refers to “the NCAA.”  I haven’t seen anything that distinguishes between Divisions I, II, and III.

A few examples of my questions are:

  • Does this eventually mean that athletes will be able to be “paid” by their schools?
  • If so, how will athletic departments balance their budgets (or least try to)?  Will they drop sports programs?  Will coaches accept reduced salaries so their players can benefit?
  • OR, will head coaches be given a total budget that they must manage to cover not only their assistant coaches but also the athletes on their teams?  (Will athletes be treated as employees of that coach or team rather than of the athletic department?  Will athletic teams be treated akin to subcontractors on a building project??)
  • Will athletes need to pay taxes on those increased benefits/payments?
  • Will NCAA Division II schools be allowed to offer multi-year scholarships like Division I?
  • Will NCAA Division III athletes now be able to receive athletic scholarships?
  • Could this ruling eventually also impact the NAIA or the NJCAA, which also currently offer athletic scholarships but have limits on those scholarships?

I realize that a few of my questions above may seem a bit “out there”, but it remains to be seen how this all turns out.  We’ll provide updates for you as we learn more.

In the meantime, if you have any thoughts, questions, opinions about this ruling, leave your comments below and I’ll address them directly or in a future blog post.

Two bills were introduced in Congress in December which overlap or intersect with each other.

Name, Image & Likeness Bill

The first bill was introduced in the Senate Commerce Committee and would permit college athletes to receive compensation for their name, image, and likeness (as would many bills introduced by various states this past year).

This particular bill was requested by the NCAA for help on a Federal level in dealing with the numerous bills introduced by various states. It would also provide oversight for the process of athletes receiving such compensation from companies and organizations via the Federal Trade Commission.

The College Athletes Bill of Rights

The College Athletes Bill of Rights, on the other hand, is a competing bill that is much more favorable to the college athletes than it is to the NCAA.

Here are some key provisions of this Bill:

  • It would require universities to share 50% of the profit from revenue-generating sports with the athletes in those sports (after deducting the value of scholarships already provided).
  • It would create “enforceable” health and safety standards developed by the CDC and the Dept. of Health and Human Services. Hefty fines would be imposed on universities not meeting those standards.
  • Establish a medical trust fund for athletes available for five years after leaving college.
  • Guarantee scholarships for athletes to complete their undergrad degree.
  • Remove penalties for not honoring a National Letter of Intent agreement to attend the university signed with for at least one full academic year.
  • Remove restrictions on athletes transferring between four-year colleges.
  • Permit athletes who enter a professional draft to declare a return to college within seven days of the draft.

We’ll continue to keep you updated on these developments in our upcoming newsletters. In the meantime, you can always contact us with questions about these or any other issues by writing to rick@informedathlete.com or by calling 913-766-1235.

We’ve recently written to inform you about the new Transfer Rule being proposed by NCAA Division I, as well as the Name, Image, and Likeness proposals in all three NCAA divisions.

https://informedathlete.com/proposed-new-ncaa-di-transfer-rule/

https://informedathlete.com/ncaa-name-image-and-likeness-legislation-update-overview/

These proposals were originally going to be voted on at the annual NCAA Convention.

However, NCAA President Mark Emmert urged the governing bodies of Division I, II, and III to postpone the votes on these proposals.

There are various factors that have contributed to this delay including:

  • A lawsuit advancing to the US Supreme Court regarding whether the NCAA can limit the benefits that college athletes can receive which are related specifically to their education.
  • Increasing concerns are being shared by university and conference administrators regarding the proposal that a third-party administrator will manage student-athlete information about the “deals” (and compensation) the student-athletes might receive regarding name, image, and likeness.To imagine how a third-party administrator for NIL might work, any of you who have interacted with the NCAA Eligibility Center can think about a similar organization to manage Name, Image, and Likeness information for all NCAA student-athletes and ask yourself whether you think that would be efficient for your athlete.
  • Another reason for the postponement of these votes is the introduction in mid-December of two different bills in Congress that impact NCAA student-athletes. In the following segment of this newsletter, I’ll provide a bit of info about those bills.

Do You Have Questions?

If your athlete is considering a transfer and you would like to review and discuss the Transfer rules, you can schedule a confidential Transfer Consult online. You can also send an email to rick@informedathlete.com or call us at 913-766-1235.

Representatives from the NCAA Division I membership will be voting on proposed “Uniform Transfer Legislation” at the January NCAA Convention.

If approved, this legislation will permit all Division I student-athletes – even scholarship athletes in basketball and football – the opportunity to transfer one time to a new school with the chance to be eligible and not have to sit out from competition in their first year at the new university.

Here are some key points to note about this proposed legislation:

  • Student-athletes transferring to an NCAA Division I program for the 2021-22 academic year will be able to benefit from this rule change.
  • This will be a one-time opportunity that can be used at any point during a student-athlete’s eligibility. It can be used as an undergrad or as a grad transfer, but not both.
  • Student-athletes must be eligible at the time of their transfer.
  • Athletes will not be permitted to compete for two different programs in the same school year.
  • Coaches and athletic departments will not be able to object to the athlete’s transfer.
  • Student-athletes and their new head coach will be required to affirm that recruiting didn’t occur until after the athlete’s name appeared in the NCAA Transfer Portal.
  • Under this proposal, student-athletes will have a deadline to enter the Transfer Portal in order to take advantage of this new rule – May 1 for Fall and Winter sports and July 1 for Spring sports.
  • There will likely be exceptions to those deadlines granted for student-athletes in situations when there is a head coaching change or when an athlete is informed of a scholarship reduction or non-renewal.

Potential pitfalls and concerns

  • With a proposed deadline of May 1st for Fall sport athletes in a year when most Fall sports have been shifted to the Spring, student-athletes who are considering a transfer may need to enter the Transfer Portal before their season concludes (unless an exception is granted for this particular situation).
  • The dates noted above could also have a very significant impact for student-athletes who may want to transfer at midyear. An athlete who might be thinking next Fall about a midyear transfer would not be able to use this new rule unless they had already entered the Transfer Portal before May 1 or July 1 (depending upon their sport).

This means that midyear transfers won’t be eligible in their first year at their new school unless the rule is revised or if another exception is established.

  • Also, it’s unclear at this time whether conferences will still impose restrictions or penalties on athletes who transfer from one school to another within the same conference.

If your athlete is considering a transfer and you would like to review and discuss the Transfer rules, purchase and schedule a confidential Transfer Consult online or by calling our office at 913-766-1235.

The NAIA has become the first college sports organization to allow student-athletes to receive compensation for the use of their name, image, or likeness.

This action takes effect immediately.

As a result, an NAIA student-athlete will be permitted to be compensated if they are promoting a local business, providing instruction, signing autographs, or making an appearance on a radio show, as examples.

This does NOT mean that NAIA student-athletes will be able to receive compensation from their university (other than the value of their scholarship).

However, they will be allowed to identify themselves as a student-athlete and can name their university in any promotional activities or appearances, while also being able to receive payment for those activities.

If you have any questions regarding this topic, call us at 913-766-1235 or send an email to rick@informedathlete.com.

The NAIA national office recently announced that they “…intend to proceed with our winter championship dates and locations as scheduled.” This decision was based on a survey of NAIA athletic directors and presidents, as well as input from winter host sites.

Start dates for winter sport seasons will be left up to the discretion of colleges and conferences, as requested by 74% of the AD’s and presidents surveyed. Also, the national office “…is not restricting practice or competition during the holiday break in an effort to allow institutions to manage the season in a way that works best for them.”

NCAA Division I championships for Fall sports will be moved to the Spring based on recommendations from the Division I Council which were approved by the Board of Directors on Tuesday.

As part of those recommendations, emergency legislation was also adopted that will prohibit midyear Fall sport enrollees from competing this Spring.

This will prevent a potential rush of athletes who may be participating in their sport at their current university this Fall, and then want to transfer at mid-year to compete in the same Fall sport at another university in the Spring.

Championship brackets in team sports will be filled with 75% of the normal number of qualifying teams. In addition, any contests completed this Fall will count toward championship qualification and can be considered by the selection committees.

Here are the schedules that have been established by the NCAA for Division I Fall sports teams to compete and qualify for championship selection in the Spring:

Men’s and Women’s Cross Country – Regular season competition is currently scheduled for Jan. 30 to March 5, with the championship scheduled for March 15. (Note: Due to concerns about athletes potentially competing in cross country, and then also indoor and outdoor track in the Spring, this scheduling is open to revision.)

Field Hockey – Regular season competition is scheduled for Feb. 12 to April 23, with semifinals and finals set for May 7-9.

FCS Football – 16 teams can qualify for playoffs to be conducted from April 18 to May 15. Up to 8 regular season games can be played within a period of 13 weeks to allow for weather conditions, COVID postponements and other factors. The championship will take place in mid-May.

Also, during this academic year FCS teams can have either “Fall ball” or “Spring practice” but not both. (FCS teams choosing to play in the Spring will be limited to 15 on-field practices this Fall.) FCS programs must declare when they are going to play their first game before they can begin practice this Fall.

Men’s and Women’s Soccer – Regular season will be Feb. 3 to April 17, with postseason selections on April 18. Finals will take place May 13-17.

Women’s Volleyball – Regular season will be Jan. 22 to April 3, with postseason selections on April 4. The semifinal and final will take place April 23-25.

Men’s Water Polo – Regular season will be Jan. 16 to March 6, with postseason selections on March 7. Semifinals and finals on March 19-21.

Just hours after the announcement on Wednesday by the NCAA Board of Governors directing the three divisions to “…safeguard student-athlete well-being, scholarships, and eligibility…,” Divisions II and III announced that they are cancelling championships in Fall sports.

At the time of that announcement, 11 of the 23 Division II conferences had already announced that they will not compete during the Fall season.

The NCAA Board of Governors recently received a lengthy 31-page report from the “Federal and State Legislation Working Group” suggesting broad recommendations for new rules that will permit student-athletes to receive compensation for the use of their name, image or likeness.

When approved, student-athletes will be able to accept payment within the NCAA rules for a wide range of activities. However, many details remain to be proposed, discussed and finalized.

Some of the basic guidelines for development of these new rules include:

  • Student-athletes will not be paid for these types of activities by their respective schools or conferences, or by the NCAA.
  • Student-athletes should have the same opportunities as the general student body to be compensated for their particular skills, ability, and name recognition except when there are compelling reasons to the contrary. (Examples: I’m sure that athletes will not be allowed to promote tobacco products, nor will underage athletes be permitted to endorse alcohol products.)
  • Education and progress toward a student-athlete’s degree must continue to be priorities. (Student-athletes will likely be prohibited from missing class to make a personal appearance, record a commercial or participate in any similar activity.)
  • Rules regarding these activities must be able to be enforceable and monitored for compliance with these rules (perhaps the hardest part of this whole concept in my opinion!!!).
  • Student-athletes will not be allowed to affiliate with a professional sports team and will not be allowed to receive compensation based specifically on their athletic performance (no prize money or compensation based on place finish in competition).
  • Rules must protect fairness in the recruitment of prospects or impermissible tampering with currently enrolled student-athletes.
  • A number of states have proposed or passed legislation within their own states to permit student-athletes to receive compensation for endorsement or promotional activities. The NCAA will be working with Congressional representatives to preempt state laws so that there can be consistency for all NCAA member institutions and their student-athletes.

Types of Activities that Will be Permissible for Student-Athletes Within the New Rules (pending approval):

Student-athletes will be allowed to receive compensation for:

  • Promoting local, regional or national businesses through personal appearances, appearing in commercials, or as social media “brand ambassadors.”
  • Modeling or signing autographs.
  • Their own creative endeavors such as acting, singing, or selling their artwork.
  • Giving private lessons or tutoring.
  • Conducting or providing research or class projects for or to private companies.

Much progress still needs to be made on establishing details and receiving feedback from various NCAA constituencies. However, the NCAA Board of Governors remain committed to having the three NCAA divisions prepare specific legislative proposals in time for the January 2021 NCAA Convention.

We will keep you updated as we learn more details and receive additional information.