President Donald Trump is reportedly weighing the issuance of an executive order that would attempt to place restrictions on college athlete compensation. The president’s interest follows conversations with two former coaches: Nick Saban and U.S. Senator Tommy Tuberville (R-Ala.).
Any executive order that restricts athletes, schools, conferences or the NCAA would encounter a bevy of problems since it would interact, and possibly conflict, with multiple areas of federal and state laws. It could also pose problems for the NCAA as it waits for U.S. District Judge Claudia Wilken to grant or deny final approval of the House, Carter and Hubbard antitrust litigations.
An executive order would likely be pitched as providing stable and predictable rules for compensating college athletes. For instance, an order that says college athletes cannot be recognized as employees would sound simple enough.
Except in the law, nothing is simple and that certainly is true of employment.
For starters, an executive order can’t conflict with a federal statute. If a court finds that college athletes are employees within the meaning of the National Labor Relations Act or the Fair Labor Standards Act, they will be employees. If a court finds they aren’t employees under those laws, then they aren’t employees.
Then there are state laws governing labor and employment. An executive order can’t compel a state to interpret its own laws a certain way. In Johnson v. NCAA, for example, the athletes argue they are employees within the meaning of the FLSA and applicable state laws, such as the New York Labor Law, the North Carolina Wage and Hour Act, the Connecticut Minimum Wage Act and the Arizona Minimum Wage Act. Or take whether athletes at public universities are employees who can unionize. That’s a question for state law, not federal law. An executive order can’t cast away state claims or accompanying states’ rights.
The same goes for the prospect of Trump issuing an edict on name, image and likeness.
NIL, as its typically called, is often portrayed as a new legal right for college athletes, but that’s an erroneous depiction. NIL is a subset of the right of publicity, which is a matter of state laws (there is no federal right of publicity) and which forbids the commercial use of another person’s identity—be it their NIL or perhaps their voice, mannerisms, signature or other characteristics that make them unique—without their consent. In the college sports parlance, “NIL” is best understood as removing an NCAA eligibility restraint on college athletes to use a right they already had (the right of publicity) under applicable state law.
To be sure, NIL has morphed into a different creature than its early billing. Some NIL collectives, at the behest of schools, have offered recruits what are labeled NIL deals but are better understood as pay-for-play arrangements. Those arrangements substantively violate NCAA rules. The NCAA has tried to curb that practice, but last year a federal judge in Tennessee and Virginia v. NCAA issued a ruling to block the NCAA.
But if approved, the House settlement would create an independent review system for NIL deals that exceed $600. The system would try to ensure these deals are not disguising pay-for-play arrangements. An order by Trump on NIL that is interpretable as conflicting with this independent review model could upend a key settlement term.
Trump could also weigh in on the new horizon of NCAA antitrust litigation: college athletes suing to remain in school so they can earn NIL money and, if the House settlement is approved, a share of media, ticket and sponsorship revenue. Those lawsuits have led to conflicting rulings in different states. Trump might decree that antitrust law be interpreted a certain way in relation to eligibility claims. That type of decree would impact how the Department of Justice, the Federal Trade Commission and other federal agencies interpret antitrust law in the context of college sports, but it wouldn’t stop athletes from continuing to bring private antitrust actions against the NCAA.
It’s been suggested that Congress or Trump needs to intervene to prevent college sports from morphing into pro sports. Often that viewpoint erroneously blames the U.S. Supreme Court’s decision in NCAA v. Alston. Remember, Alston had nothing to do with NIL or paying college athletes to play sports. It concerned the peripheral issue of NCAA rules restricting how colleges compensate athletes for education-related expenses. Many of the justices who voted against the NCAA in Alston expressed worry about the commercialization of college sports. That could foretell how the justices would rule on antitrust cases regarding NIL or paying athletes to play sports. Alston is not an especially persuasive reason for Trump to intervene.
There are also potential constitutional problems with a Trump executive order on college sports. It could run afoul of Equal Protection if college athletes are denied the same rights, including for employment and other economic opportunities, that their classmates enjoy. An executive order might also run afoul of the First Amendment to the extent it limits how college athletes express themselves.
Trump might be well served by meeting with other stakeholders, including those whose opinions and viewpoints aren’t necessarily aligned with retired college coaches.
Paul McDonald, who is counsel to the plaintiff athletes in Johnson, told Sportico he’d “welcome the opportunity to speak with the President about NCAA reform.” A graduate of Princeton University and NYU School of Law, McDonald believes Trump would listen to him and find his athlete-focused viewpoint persuasive.
“I believe the President–and any reasonable Republican or Democrat–would support college athletes having the same, limited student employee status as classmates selling popcorn at NCAA games,” McDonald said. “Equal treatment to classmates in Work Study-style student employment, including student employees on academic scholarship, is consistent with Equal Protection, easy to implement using NCAA-mandated timesheets, and affordable on hourly, minimum wage scales–particularly if colleges stop overpaying some coaches. Colleges have never explained why they oppose this easy, and equitable, solution.”
(The quote in the final paragraph from Paul McDonald was incorrectly attributed in an earlier version of the story.)
