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PHILADELPHIA — The NCAA on Wednesday asked a federal appeals court to dismiss a legal effort to get colleges to treat Division I athletes like employees and pay them an hourly wage.
Advocates for the student-athletes said they often devote 30 hours or more a week to their sport and often need money for expenses, even if they have a full scholarship. And they believe athletes deserve a share of the millions spent on coaches, college administrators and facilities — and the billions that networks pay to televise collegiate sports.
According to the lawyers, they were not seeking market-based payment, but only a modest flat-rate payment similar to that of working students.
“This does not open up a circumstance where there is a bidding war (for top talent),” said attorney Michael Willemin.
The NCAA asked the court to uphold the tradition that collegiate athletes are unpaid amateurs. Critics of the pay-for-play system also worry the cost could prompt schools to cut back on sports that don’t generate as much or no revenue while devoting more resources to their profitable soccer and basketball programs.
Attorney Steven B. Katz, arguing for the NCAA, said that stating that athletes are employees “takes you to the edge of a slippery slope that quickly takes you to a place you don’t want to go.”
As an example, he said the cost of attending some of the private colleges involved in the case exceeds $70,000 a year. The value of a full scholarship would far exceed the $10,000 to $15,000 the athletes could earn if they were paid a modest hourly wage, he argued.
Katz also said the grants could become taxable if the students are considered employees. And he questioned how teams would work if some students were “paid employees” on scholarships, while non-scholarships were not.
At least one person on the panel, U.S. Circuit Judge Theodore McKee, seemed to believe that at least some student-athletes might be employees under the Fair Labor Standards Act — while recognizing such a finding would create “so many practical problems.”
Would football players at powerhouse schools make more than swimmers at small schools? What about the Division II athletes?
“Maybe we’ll end up there — that the quarterback at the SEC school is an employee and the woman who runs the cross-country track in Alabama, they’re not an employee,” McKee said.
When Katz raised the potential risk of back taxes, McKee cut him off, saying, “The case is complicated enough without us having to go down that rabbit hole.”
A lower court judge had refused to dismiss the lawsuit before it went to trial, prompting the NCAA to appeal. The three-member panel did not say when it would decide.
Willemin, arguing for the students, said the NCAA burdens athletes with strict rules about gambling, earning outside income and freedom of expression, while their school teams further limit their choices by restricting their schedule, their study halls, and sometimes even theirs control college major. The NCAA could loosen its control over student athletes and the case could go away, he suggested.
“The NCAA has turned the idea of the student-athlete on its head, even in sports that don’t generate revenue,” he said. “These are regulations that the NCAA can change. You have chosen not to change them.”
The case is just the latest to test the NCAA’s traditional amateur model – and comes as the organization is already grappling with complicated problems arising from the advent of “name, likeness and likeness agreements that are used for the most popular college athletes can top a million dollars.
The NCAA is also hoping Congress could intervene in the face of a series of court setbacks. These include the US Supreme Court’s unanimous decision last year that overturned the ban on compensation beyond full scholarships and allowed colleges to provide athletes with education-related benefits such as computers and tuition for study abroad.
Follow AP Legal Affairs writer Maryclaire Dale at https://twitter.com/Maryclairedale
