At what point should college athletes be considered employees?

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Brandon Outlaw sat on the witness stand for two days this week and described what it was like to play football at the University of Southern California.

His fingerprints were scanned when he arrived to eat at the athletes' dining room to make sure he was there. He received text messages from anonymous class inspectors, who sometimes asked him to send photographs to verify that he was indeed in class. He regularly urinated in a cup before practice and handed it to a member of the training staff, who informed him whether he was adequately hydrated.

After Outlaw conducted an interview with a journalism student, a coach reminded him that he had violated team policy by not authorizing the interview with a school official.

Outlaw, who graduated in December 2022 with a master's degree in entrepreneurship and innovation, detailed an existence that bore little resemblance to the romantic ideal of the college athlete. Instead, he described how soccer took up about 60 hours a week during the season and required him (with the help of a sports academic advisor) to fit his classes into windows that did not conflict with his myriad soccer-related activities. which some days started at 6 am

The question at the heart of Outlaw's testimony, at a National Labor Relations Board hearing, is simple and carries profound implications: Should college athletes be considered employees?

If the answer is yes, it could be the death knell for the model of amateurism that has remained the foundation of college athletics as it has evolved into a billion-dollar business, allowing schools to invest in the coaches money that could have gone directly to the players. salaries, sparkling facilities and rising staff.

Granting athletes employee status would strengthen their position in antitrust lawsuits and give the highest-profile athletes, football and men's and women's basketball players, the power to collectively bargain directly with universities over salaries and other rights. .

The case threatens to “disrupt and transform more than 100 years of college athletics,” said Adam Abrahms, an attorney representing USC, which, along with the Pac-12 Conference and the NCAA, is one of the defendants.

Such a disruption would be welcome, said Ramogi Huma, executive director of the National College Players Association, an athlete advocacy group. Earlier this year, Huma filed the complaint with the NLRB on behalf of USC football and men's and women's basketball players.

“The years of tradition that we are trying to stop are the tradition of exploitation, the tradition of double standards and the tradition of refusing to pay fair market value to employees,” Huma said Wednesday after the third day of the hearing. The proceedings are scheduled to continue at the end of January, when coaches and administrators may be called to testify, and conclude at the end of February. A ruling is not likely to be reached until late next year.

The hearing, in Los Angeles, is just one salvo in an attack on amateurism that was reinforced in 2021 by a unanimous Supreme Court decision in which Justice Brett M. Kavanaugh characterized the NCAA as a price-fixing cartel. prices.

Players on the Dartmouth men's basketball team have also gone before the NLRB to ask that they be considered employees, and a lawsuit, Johnson v. NCAA, seeking to have the athletes considered employees is making its way through federal court.

Then there are a series of antitrust lawsuits, including House v. NCAA, a class-action lawsuit seeking $1.4 billion in damages (which the court could triple) for athletes from major conferences. The athletes in that case argue that the NCAA's previous restrictions on name, image and likeness rights unfairly deprived them of a share of television and social media revenue.

These challenges have led the NCAA to repeatedly ask Congress for an antitrust waiver, where they have rarely found a sympathetic ear.

The lack of traction led Charlie Baker, former Massachusetts governor in his first year as NCAA president, to suggest this month that the richest sports programs begin committing at least $30,000 annually to trust funds for at least half of its athletes, an offer it hopes will get Congress to agree to limited antitrust relief.

“We all know this is a big public issue and people have opinions about college sports,” said Daniel Nash, Pac-12 chief counsel. “But this is a case of unfair labor practice.”

The setting in Los Angeles, far from the halls of Congress or the august, wood-paneled, high-ceilinged courtrooms, reflected that. The hearing took place in a conference room in a generic glass office building with the administrative judge, Eleanor Laws, sitting at a portable box where she looked face to face across a table of more than a dozen lawyers. (The only other people in the room were several members of the media.)

That a case would end up before the NLRB, which handles fair employment cases involving private companies, seemed inevitable since Jennifer Abruzzo, the board's general counsel, invited a challenge two years ago by issuing a memo that said the law would support the scholarship football classification. NCAA Division I players as employees.

The NLRB accepted Huma's case, which has been expanded to include men's and women's basketball players, as well as non-scholarship athletes, who are commonly known as walk-ons. The Pac-12 and the NCAA have been named co-defendants so any ruling would apply to both public and private schools that are part of those organizations.

During the early days, Amanda Laufer, the general counsel's lead attorney, sought to demonstrate through the testimony of two recent former football players, Outlaw and Kohl Hollinquest, that USC exercised extraordinary control over athletes, even those who were not being rewarded with scholarships or earning hundreds of thousands of dollars in endorsements like Caleb Williams, the team's Heisman Trophy-winning quarterback.

(Another subpoenaed witness did not appear at Wednesday's hearing. Laufer declined to identify the athlete, but subpoenas were issued to other athletes.)

In addition to fingerprint monitoring of their dining hall attendance, class monitors, and almost daily hydration and weight checks, players were required to stay at the team hotel when traveling unless they were leaving with the team, even if the game There were many hours left.

Did Laufer ask Outlaw if he could meet a friend for coffee?

“No,” Outlaw said.

Could you visit the Space Needle while the team was in Seattle?

“No,” Outlaw said.

Both players described a points system under current head coach Lincoln Riley and his predecessor, Clay Helton, in which being late or missing meetings, meals, weight-lifting sessions or classes would add to the team's punishment. Outlaw testified that on Monday mornings, Riley would stand in front of the team and read a list of the previous week's transgressions. For each, each player would have to do an up-down drill, a drill in which players lower themselves into a push-up position and then bounce back up.

Outlaw, who ran at the University of Virginia for four years before transferring to USC and joining the football team, said that while some workouts are considered voluntary (the NCAA has time restrictions for team activities), players are expected to participate.

“They were saying things like, 'No, this isn't required, you don't have to do it,'” Outlaw said with a smile. “'But it's not mandatory that we play with you in the fall either.'”

This contrasted with the image Abrahms had illustrated of football as an extracurricular activity that is part of the “institutional fabric” of the school. Athletes “don't come to USC with the intention of punching the clock,” he added. Abrahms tried to make clear in his questioning that the players had acquired skills such as discipline and leadership while playing football that would benefit them long after college.

Abrahms, Nash and Rick Pins, the NCAA's lead attorney, attempted to draw a connection in their questioning of Outlaw and Hollinquest between the demands of college football and those of high school football, where players also had coaches, schedules and rules to follow. .

But Laufer pointed out that those are also characteristics of professional soccer.



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