At what point should college athletes be considered employees?

Brandon Outlaw sat on a 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 for meals in the athletes’ dining hall to ensure he was there. He received text messages from anonymous class monitors, who occasionally asked him to send photos to verify that he was indeed in the classroom. He urinated regularly into a cup before training and handed it to a member of the training staff, who inquired whether he was sufficiently hydrated.

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

Outlaw, who graduated in December 2022 with a master’s degree in entrepreneurship and innovation, painted an existence that bore little resemblance to the romantic ideal of the college athlete. Instead, he described how football took up nearly 60 hours a week during the season and that — with the help of an athletics counselor — he had to fit his classes into windows that didn’t conflict with his myriad football-related activities , which on 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 has profound implications: Should college athletes be considered employees?

If the answer is yes, it could be the death knell for the amateur model that has remained a foundation of college athletics as it has evolved into a multibillion-dollar business, allowing schools to pour money that would have gone directly to players into coaches. salaries, beautiful facilities and ballooning staff.

Granting employee status to athletes would strengthen their position in antitrust lawsuits and give the nation’s leading 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 a defendant.

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

“The long-standing tradition that we are trying to stop is the tradition of exploitation, the tradition of double standards and the tradition of refusing to pay fair market value to workers,” Huma said on Wednesday after the third day of the hearing. The proceedings will continue in late January, when coaches and administrators can be called to testify, and conclude in late February. A ruling will probably not follow until later next year.

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

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

Then there’s a series of antitrust cases, including House v. NCAA, a class-action complaint seeking $1.4 billion in damages (which the court could triple) for athletes in the top conferences. The athletes in that case allege 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 prompted the NCAA to repeatedly ask for an antitrust waiver from Congress, where they have rarely found a sympathetic ear.

The lack of traction prompted Charlie Baker, the former governor of Massachusetts in his first year as NCAA president, to suggest this month that the wealthiest athletic programs would put at least $30,000 annually into trust funds for at least half of their athletes, an offer he hopes will happen. 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, the Pac-12’s chief counsel. “But this is a case of unfair labor practices.”

The stage in Los Angeles – far from the halls of Congress or the August courtrooms with wood-paneled walls and high ceilings – reflected that. The hearing took place in a conference room in a standard glass office building, with the administrative law judge, Eleanor Laws, sitting in a portable box and looking face to face over a table of more than a dozen lawyers. (About the only other people in the room were several members of the news 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 saying the law would classification of scholarship football would support. players in the NCAA’s top division 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-listed athletes, commonly referred to as walk-ons. The Pac-12 and the NCAA have been named as co-defendants, so any ruling would apply to both public and private schools that are part of these organizations.

During the opening days, Amanda Laufer, the lead attorney for the general counsel, tried to show through the testimony of two recent former walk-on football players, Outlaw and Kohl Hollinquest, that USC exercised extraordinary control over its athletes, even those who goods. not being rewarded with scholarships or making hundreds of thousands of dollars in endorsements like Caleb Williams, the team’s Heisman Trophy-winning quarterback.

(Another subpoenaed witness did not show up for Wednesday’s hearing. Laufer declined to identify the athlete, but subpoenas have been issued for other athletes.)

In addition to the fingerprint checks of their presence in the dining hall, the class monitors and the almost daily hydration and weight checks, players were required to stay at the team hotel when on the road, unless they left with the team – even if the game was many hours away.

Laufer asked Outlaw if he could meet a friend for coffee?

“No,” Outlaw said.

Could he 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, where being late or missing meetings, meals, weight-lifting sessions or classes would amount to team punishment. Outlaw testified that Riley stood before the team on Monday morning and read a list of the previous week’s violations. For each exercise, each player should do one up-down, an exercise in which players drop down into a push-up position and then bounce back up.

Outlaw, who spent four years at the University of Virginia before transferring to USC and joining the football team, said that while some workouts are considered voluntary — the NCAA has hour restrictions on team activities — players are expected to participate .

“They said things like, ‘No, this is not mandatory, you don’t have to do it,’” Outlaw said with a smile. “But it is also not mandatory for us to play against you in the fall.”

This contrasted with Abrahams’ image 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 a clock,” he added. Abrahams tried to make it clear in his cross-examination that the players had acquired skills such as discipline and leadership through playing football that would benefit them long after their studies.

In their questioning of Outlaw and Hollinquest, Abrahms, Nash and Rick Pins, the NCAA’s chief counsel, attempted to draw a connection between the demands of college football and those of high school football, where players also had coaches, schedules and rules to follow. to play. to follow.

But Laufer noted that those are also hallmarks of professional football.