Newsletter, Image, Likeness Vol. 6: Are We Closer To College Athletes As Employees?

The Weekly Longer NIL Thought.

This isn't exactly about NIL, but it has the potential to seriously change college sports and have major effects on the NIL landscape which, coupled with the transfer portal, many believe to be getting out of hand.

On December 15, 2022, the National Labor Relations Board's (NLRB) LA region declared that it determined there was merit to the pending unfair labor charge claim brought by the National College Players Association (NCPA) on behalf of athletes at the University of Southern California (USC).

A key finding in the NLRB LA region's ruling was a determination that not only is USC an employer of football and basketball players, but so are the Pac-12 Conference and the NCAA. If that position is upheld then we could be on the path to college athletes being deemed employees not only at private schools but public schools as well given that conferences and the NCAA itself are considered joint employers (the National Labor Relations Act only applies to private employers).

In a statement released by NLRB general counsel Jennifer Abruzzo , she stated,

The Region’s determination that the unfair labor practices have merit is based on a determination that USC, the Pac-12 Conference, and the NCAA, as joint employers, have maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protections under our law. This kind of misclassification deprives these players of their statutory right to organize and to join together to improve their working/playing conditions if they wish to do so. Our aim is to ensure that these players can fully and freely exercise their rights.

Consider this as a battle being won for those who advocate for college athletes to be classified as employees. But the war is far from over.

If there is no settlement (and settlement appears to be unlikely), then the next step will be for the parties to go before an administrative law judge, which would thereafter likely be appealed to the national NLRB forum. Then, you can expect action in a federal appellate court. We may even U.S. Supreme Court intervention.

There is a long way to go.

College athletes are not yet considered employees.

It would still be faster for change on this front to occur through the legislative process, but that seems rather unlikely, at least for now.

So, how does all of this potentially affect NIL?

If college athletes ultimately receive employment status, then it could actually serve to assist the NCAA, conferences, and schools get a handle on the free-agency styled system that has developed based on the existence of NIL (coupled with the NCAA's inability/unwillingness to enforce its recruitment inducement rule) with the transfer portal. With employment status, athletes would become salaried employees and sign employment contracts, which would likely limit their capacity to move as freely as they currently can and are doing. At the same time, college athletes could benefit from collective bargaining for better work conditions and minimum salaries. The athletes who are not considered 5 stars may benefit the most.

I'll leave you with this quote from my colleague and friend Gabe Feldman who stated it for a recent Sports Illustrated piece on the subject:

Employee status is not a guarantee of better rights, but it would certainly empower the athletes to negotiate for better rights. Whatever the path is, there are downsides to the path. I don’t think any solution is necessarily going to be perfect. For every gain made for one athlete, it may lead to less from another athlete.

Wake Forest Coach Accepts Reality Of NIL + Transfer Portal.

Dave Clawson said, concerning his QB, "in some cases with guys with eligibility left, they might have an opportunity to make more money by going to another school for a year than by going to the NFL. In that case, we couldn’t fault them. Whatever decision Sam [Hartman] makes, we support him. I think right now his intention is to go to the NFL. But when the bowl game is over, if there is some incredible offer for him to go to another school and get life-changing money, how could we fault him for that? It’s a good problem to have. He’s going to have many good options."

No Longer Even Pretending About NIL Use As An Inducement.

“Ohio State missed out on a 5 star recruit because they could not pay him even half of what he was looking for. They didn’t get him over $750k.”

Louisiana Lawyer Increases His NIL Activity.

Gordon McKernan, who has already entered into NIL deals with many LSU football players, announced that he will offer a deal to every eligible athlete on the LSU basketball team.

Celsius Signs Bryce Young and Caleb Williams.

The energy drink brand certainly opened up its wallet to partner with these 2 prominent players. Joseph Mugrabi assisted Celsius with the deals.

Spencer Rattler Is Back With A New Car Deal.

Remember when Spencer Rattler was one of the hottest QB names in the nation and scored 2 cars? Well, he since transferred to South Carolina and hasn't done so badly for himself.

The G-Class looks nice on him.

I Believe This Is The 1st Female Football Player NIL Deal.

It's a relationship between Laguna Beach High School player Bella Rasmussen and KeyWise, facilitated by MarketPryce , and focuses on the importance of mental health and wellness.

What's The Latest On High School Athlete NIL?

Roughly half of the states allow it.

A risk exists that premier athletes will move away from states that restrict NIL activity to states that say it is OK.

Leonard Armato wrote a piece on Forbes that highlights the concern but also discusses 1 player, Julien Lewis, who has stayed in Georgia despite the lack of NIL opportunities.

I'm quoted stating, "The biggest mistake states made when they passed NIL legislation leading up to the NCAA removing its prohibition on NIL transactions was that they stopped at college athletes and did not mandate that high school athletes have the same rights."

Maryland Decides To Begin Allowing HS Athletes To Enjoy NIL.

The state has the 24th organization to permit high schoolers to monetize their NIL.

But they're prohibited from engaging in NIL activities involving the following:

• Adult entertainment products and services;
• Alcohol products;
• Tobacco and nicotine-related products;
• Cannabis products;
• Controlled dangerous substances;
• Prescription pharmaceuticals;
• Casinos and gambling, including sports betting and the lottery;
• Video games, on-line games, and mobile devices; and
• Weapons, firearms, and ammunition. 

The video game prohibition is a weird one.

Representation Announcements.

This one obviously makes too much sense

Same with this one:

Kansas State basketball player Keyontae Johnson has signed with Michael Raymond 's company Raymond Representation.

UCLA wide receiver commit Grant Gray signs with NETWORK .

Final Thoughts.

That is it for Vol. 6 of Newsletter, Image, Likeness. Thanks to the over 4,160 people who subscribed to this newsletter thus far and please feel free to share this free resource with others on LinkedIn or elsewhere.

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