In last Tuesday’s hearing before the U.S. Senate Judiciary Committee, NCAA president Charlie Baker asked that Congress “codify current regulatory guidance into law by granting student-athletes special status that would affirm they are not employees.”
There’s a risk for the NCAA in making this request: Why would Congress craft a new, “special status” for college athletes as non-employees if, as the NCAA has argued in court, college athletes aren’t employees under existing law?
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No special status would be needed—unless the athletes are, in fact, employees.
The situation highlights the logical perils of claiming current law supports one position while simultaneously claiming current law must be amended to achieve that same position.
It’s a two-step dance that might cause the NCAA to trip.
Expect attorneys representing college athletes to cite Baker’s testimony in written motions and during oral depositions of witnesses (potentially including Baker), conference executives and athletic directors. The NCAA, those attorneys will maintain, has now effectively conceded college athletes meet employment criteria.
Those criteria include performing services for a business, with college athletes playing sports the university uses to generate ticket sales and TV, apparel and other...
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