By: Ashlyn P. Stone
The National Collegiate Athletic Association (N.C.A.A.) is a national organization that creates rules and regulations for roughly half a million college athletes in the United States.[1]
For the entirety of the N.C.A.A.’s 115-year history, collegiate athletes were treated as amateurs and were prohibited from profiting off their performances.[2] In accordance with these principles, student athletes, regardless of sport or gender, were limited to receiving scholarships for education, books, and other expenditures directly related to attending college and receiving an education.[3] These strict limitations were altered drastically by the recent Supreme Court ruling in N.C.A.A. v. Alston.[4]
In June of 2021, the Supreme Court unanimously ruled that the N.C.A.A. could not preclude modest payments to collegiate athletes.[5] As a result of this decision and the impending alteration of N.C.A.A. regulations, college athletes now have the opportunity to benefit from their name, image, and likeness.[6] Under these new regulations, college athletes will be allowed to engage in multitudes of paid projects such as endorsement deals, social media ambassador arrangements, personal coaching programs, and apparel profits.[7]
The collegiate sports world had gone nearly 50 years with no structural change to its regulations until the decision of N.C.A.A v. Alston.[8] This decision embodies a win for workers’ rights because athletes, who are often viewed as “employees” of the university, can now at least be modestly compensated for their efforts.[9] However, the opinion still allowed for a ban on direct payments to athletes, a decision that Justice Kavanaugh and other political affiliates found to be a violation of workers’ rights.[10] A bipartisan issue, both republicans and democrats have commented on the necessary steps that should be taken to ensure a fair work environment for student athletes.
“Today’s decision from the NCAA is a welcome acknowledgement that college athletics must do more for college athletes,” Democrat Senator Maria Cantwell of Washington state stated.[11] “However, today’s interim action is no substitute for a national standard that not only gives our athletes the ability to control their own name, image, and likeness rights, but also includes health care, safety, scholarship, and transfer protections.”[12] Meanwhile, Republican Senator Jerry Moran of Kansas agreed that the Supreme Court decision was a correct step, but reiterated Congressional need to create a more “level playing field regarding student athlete protection and compensation.”[13]
In his supporting opinion, Justice Kavanaugh described the vast employment and labor issues that still remain, including the trend towards treating student athletes as employees. First, Justice Kavanaugh recognized that student athletes have no meaningful avenue to negotiate, supporting a trend towards treating collegiate athletes as employees who can discuss their monetary possibilities.[14] Kavanaugh recognized that, despite allowing college athletes to receive minor compensation, the N.C.A.A. would still be setting the price of student athlete labor far below market rate—thus raising additional issues of employee rights and fair compensation.[15]
Justice Kavanaugh’s concurrence elucidated on the issues of price-fixing labor, bringing important considerations to the forefront for employment and labor attorneys, such as whether student athletes should be paid fair market-rate compensation or whether they will engage in collective bargaining agreements.[16] These questions remain unanswered for now, but many political actors and management firms alike have already begun searching for the best solutions to under-compensated student athlete labor.
[1] Adam Liptak & Alan Blinder, Supreme Court Backs Payments to Student-Athletes in N.C.A.A. Case, N.Y. Times (Jun. 21, 2021), https://www.nytimes.com/2021/06/21/us/supreme-court-ncaa-student-athletes.html.
[2] Id.
[3] Id.
[4] 141 S. Ct. 2166 (2021).
[5] Id. at 2141.
[6] Id. at 2165.
[7] Steve Berkowitz, NCAA adopts temporary policy on name, image, and likeness in seismic shift for college sports, USA Today (Jun. 30, 2021), https://www.usatoday.com/story/sports/college/2021/06/30/ncaa-adopts-name-image-likeness-policy/7813970002/.
[8] Id.
[9] Id.
[10] Alston, 141 S. Ct. at 2167 (Kavanaugh, J., concurring).
[11] Berkowitz, supra note 6.
[12] Id.
[13] Id.
[14] Alston, 141 S. Ct. at 2168 (Kavanaugh, J., concurring).
[15] Id.
[16] Id.
