NCAA Update: NLRB Employee Ruling and NIL Rules & Disputes

The Associated Press reports a National Labor Relations Board (NLRB) Regional Director has ruled that Dartmouth basketball players are employees, which would allow them to create a labor union. The decision is particularly significant because the players, in common with other Ivy League athletes, do not receive athletic scholarships  As the story notes, this holding is consistent with the NLRB General Counsel’s 2021 memo concluding that certain college athletes should be considered employees. The decision is subject to review by the NLRB. Additional coverage: Inside Higher EdN.Y. TimesSlateWashington Post.

Separately, in the rapidly developing name, image,  and likeness (NIL) area the Division I Council of the NCAA approved new rules relating to disclosure and transparency. The press release highlights “four elements of student-athlete protections”: voluntary registration for NIL service providers; required disclosure by student-athletes to their schools of more than nominal NIL agreements; development of a template contract and recommended contract terms; and development of an education plan for student-athletes and other stakeholders. The Council also introduced new proposals for consideration relating to school involvement and recruiting in NIL activities, including ones that would remove certain restrictions on school support for such activities.

At the same time, disputes between the NCAA and schools relating to NIL arrangements are heating up. Last month the NCAA announced an agreement relating to a violation of NCAA rules by a Florida State assistant football coach, including various recruiting-related restrictions. Coverage: ESPNWashington Post. And earlier this month USA Today reported a federal judge refused to issue a temporary restraining order relating to the NCAA’s NIL rules in an antitrust lawsuit brought by Tennessee and Virginia. A preliminary injunction hearing in that case is set for next week.  Additional coverage: Law360 (subscription required). 

Lloyd Mayer