Careful What We Wish For: Student-Athlete as Employees May Negatively Impact NIL
This content first appeared in NIL Corner, my monthly column in Sports Business Journal.
Read time: 2.5 minutes
Earlier this month, the National Labor Relations Board’s Los Angeles office issued a complaint against the NCAA, the Pac-12 Conference and the University of Southern California.
It alleges that those three entities have committed unfair labor practices in misclassifying college athletes as “student-athletes” instead of designating them as employees of the university.
While this development has the potential to revolutionize college athletics, I find myself apprehensive about its potential negative consequences, particularly concerning the progress made across the Name, Image, and Likeness (NIL) landscape.
While “student-athletes as employees” may sound like a step toward fairness, I fear it may have the opposite effect.
Institutions Will Be in Chaos
First and foremost, the transition to employee status could plunge institutions into a state of chaos.
The current NIL Interim Policy prohibits direct compensation to student-athletes for the use of their name, image, and likeness. However, if student-athletes were to become university employees, it would only be natural for institutions to request the use of their students' NIL as part of a compensation package.
And why wouldn't they? Universities, much like local businesses and national brands, would seize the opportunity to leverage the name, image, and likeness of student-athletes for various marketing endeavors, from recruiting the general student body to boosting season ticket sales for the football team.
None of that seems all too controversial until you consider the complex questions of how institutions would implement a compensation structure:
Will all student-athletes (usually between 400-700) at the university be compensated or only some - and how will that be determined?
Will compensation be uniform across all student-athletes, or will it vary based on sport or even position within a team?
And what about the impact on Title IX? Certainly the same amount of income paid to male athletes will be paid to female athletes - or are we going to try to relitigate 50 years of what is meant by "the equal treatment of female and male student-athletes in the provisions of equipment and supplies, publicity and promotions, support services..."
Student-Athletes’ Quality of Life May Not Improve
Next, I have real concerns about the quality of life of student-athletes today and I’m not sure that will improve under an “employee” designation.
Presently, colleges and universities, even those in Division II and Division III, exercise an extraordinary level of control over the schedules of student-athletes. While most professionals in the workforce adhere to a standard 40-hour workweek, Division I student-athletes frequently commit far more hours.
NCAA rules stipulate that student-athletes can only be required to participate in sport-related activities for 20 hours per week during the season. However, this figure fails to account for travel time, compliance meetings, team promotional activities, and other extraneous commitments.
My concern is that if student-athletes were to become employees, universities might exert even greater control over their schedules, leaving them with even less time to engage in typical college experiences.
In numerous studies I have conducted, after all of the team related commitments, quasi-team related commitments, sleeping, eating, classes, and studying, student-athletes have about 3 hours per week to be college students.
Might they possibly have less free time as employees?
Potential Negative Impact on Brand Deals
Finally, I worry about the potential negative impact on NIL brand deals. As it stands, institutions already place barriers on student-athletes seeking brand partnerships.
First, they prohibit NIL activity for student-athletes in categories they deem to be inappropriate, such as tobacco and firearms. Institutions even prohibit NIL deals in categories with which they themselves do athletic department wide sponsorships, including alcohol and gambling/betting.
Second, institutions prohibit NIL activity for student-athletes if the student-athlete’s potential partnership is with a “competitor” of one of the school’s sponsors.
So with an employee designation, I envision institutions exercising greater control, potentially impeding student-athletes' access to brand opportunities.
Consequently, this may lead to diminished interest from brands in engaging with student-athletes, further stifling their earning potential.
I remain optimistic and believe that the vast majority of those in college athletics and NIL want to do what’s best for student-athletes.
I’m just not convinced that every step in the march to fairness - including this one by the National Labor Relations Board - will have its intended effect.
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Bill Carter is an NIL Consultant, Educator, and Speaker. He is a NIL Columnist for Sports Business Journal and teaches NIL in College Sports at the University of Vermont’s Grossman School of Business. Click here to read about Bill’s NIL Consulting and NIL Education for sports organizations, universities, and brands.