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When Rich Rodriguez, the once-and-again West Virginia football coach, announced he was banning his players from dancing on TikTok, he made his reasoning clear.“We try to have a hard edge or whatever, and you’re in there in your tights dancing on TikTok ain’t quite the image of our program that I want,” Rodriguez said at a March 10 news conference.
The decree was quickly forgotten by most — except Paul McDonald, the lawyer in a class-action case that has been in the background the past few years but is set to move to the front.
The NCAA is hoping to soon finalize a settlement in another case, House vs. NCAA, which centered on its past restrictions on athletes earning money for their name, image and likeness opportunities. The NCAA has agreed to pay out billions in damages to former players and revenue-sharing for current and future players and generally agreed to a new model for the new era.
But there’s another major case in the pipeline, Johnson vs. the NCAA, and it covers a thorny issue for the NCAA: employment. That’s where McDonald comes in, along with Rodriguez’s TikTok ban and rules like it.
In pro sports, where players have a union, any coach or team rule that a player deems over the line could be subject to a grievance. That’s not the case in college sports, where athletes are not deemed employees and are not unionized. The coaches’ rules have tended to be law, with the main recourse being public shaming or players leaving — something that has been made much easier in recent years. But whether players should have to resort to that is part of the question.
Why is the question of employment so important? It could be the major step toward the unionization of college athletes, which would allow for negotiated rules, as in pro sports, that would not be subject to court injunctions. It’s seen as one way toward the end of unlimited transfers, one reason that coaches like Lane Kiffin have advocated for it.
But the NCAA is fighting it because of economic and cultural concerns. McDonald and other advocates see it as an issue of fairness. There are many layers to the debate, enough for a college thesis. Control is just one of them.
McDonald filed the Johnson case on behalf of former Villanova football player Ralph Johnson in 2019, and others have since joined.It does not have a trial date yet but has been going through the system for a while; a judge denied the NCAA’s initial request for dismissal four years ago.
As much as the pendulum has swung in the direction of players the past few years — NIL, unlimited transferring — McDonald believes the employer-employee dynamic remains strong.
“Rules set at the athletic department and coach levels seem to be trending stricter and more extensive in anticipation of revenue-sharing under the House settlement,” McDonald said.
We’re paying you now, McDonald sees coaches saying to players, so even more reason for you to adhere to our rules.
The NCAA has fought the employee argument, and when it comes to the question of team rules, it has argued they are “intrinsic” to team sports. The question is whether off-field rules apply.
“On the one hand, this is a pretty foolish action by the coach to take on a number of grounds, including the fact it only strengthens the argument the individuals on the football team operate under the constraints of the coach. This is a constraint that no other students at the university would operate under,” said Marc Edelman, an employment law expert who has written multiple papers in favor of college athletes being employees. “On the other hand, it’s only one more over-reaching step that’s not likely to put the college athletes over the goal line for proving control. That goal line had been met a long time ago.”
Indeed, off-field rules have existed as long as college sports have existed, from coaches banning players from going to certain dorms to things in the social media era. Then-Georgia men’s basketball coach Mark Fox banned his players from using Twitter and had a long list of rules that included no saggy pants and having only one girlfriend. He decreed that apartments were subject to sudden searches: “We’re paying, so we’re inspecting. I can enter the dorm at any time.”
In 2014, a group of University of Maryland journalists looked into the rules different universities had for student-athletes. Many schools required athletes to turn over their social media passwords. Western Kentucky required athletes to stay offline during certain hours. Ask any former college athlete, and they probably could recount some rules about off-field behavior they had to adhere to in order to remain on the team.
The employment question will be decided on several factors, and the aspect of “control” is one of them. How much control does the (possible) employer have over the (possible) employee? In college sports, do these rules kick in the “control” aspect that makes the athletes employees?
One argument the schools will make: By attending any school, athletes subject themselves to personal conduct and honor codes. So the coaches putting in rules by themselves are employee-defining, according to Josh Nadreau, an employment lawyer in Massachusetts. Nadreau is advising some athletic departments, including one in the ACC and another in the Big East, which he did not want to name. He advised UCLA in a case that went before the National Labor Relations Board in 2023.
But even Nadreau acknowledges that what would seem to go beyond normal team-related rules would run the risk of affecting employment status.
“When I’m advising folks, I’d say focus on the level and things that you need to control to make your team successful and less on sort of other things that people who don’t have the same interest as you will use as a factor to try to put another coin on the side of scale on employment,” Nadreau said.
Terri Stewart, an employment law expert in Atlanta, has advised schools on the issue. It’s hard to have a functioning athletics team without rules, she said, so by itself, whether that makes them employees is the question.
“The plaintiff and the union organizers would like control to be everything. But is but one factor (judges look at),” Stewart said. “So on the defense side, where is where we reside, we’re going to continue pushing back on that for the future of collegiate sports. But they (the plaintiffs) will likely go after the highly paid, high-attention, successful performers to be the target of their challenges.”
McDonald, however, argues that all college athletes fall under the employee bucket. He compares it to work-study students and students employed to sell concessions at games, and he pointed to a 400-page manual that the NCAA has for athletes, as well as the individual rules that teams have.
In a court filing, the NCAA responded that if college athletes are under “control” of their coaches and schools, then high school athletes could be termed employees.
Part of the NCAA’s hope for Congressional action would be a rule that would prevent athletes from being classified as employees. In the meantime, it may come down to the courts and the Johnson case.
“These issues are long from over,” Nadreau said. “In some circles, I think there’s thought that the House settlement will be a reset point. I don’t think so.”
This article originally appeared in The Athletic.
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