FROM AMATEURISM TO EMPLOYMENT: THE CHANGING LANDSCAPE OF COLLEGE ATHLETICS

Blog Post | 113 KY. L. J. ONLINE | January 24, 2025

From Amateurism to Employment: The Changing Landscape of College Athletics

By: Brandon Gonzalez Jimenez, Staff Editor, Vol. 113 

Commercialization and the tendency to pursue unfair advantages have been present almost since the inception of organized college sports.[1] In the early days of college football, Harvard University paid a non-student to play for them in hopes of beating Yale University.[2] Around the same time, college football was becoming more dangerous, with “over eighteen deaths and one hundred major injuries” in 1905 alone.[3] That same year, President Theodore Roosevelt called for reforms to make college football safer after his son was injured while playing for Harvard.[4] With the increase of commercialization in college sports, the two main drivers for a regulating body were to prevent non-students from competing and enhance player safety.[5] To accomplish these goals, the National Collegiate Athletic Association (NCAA) was formally established in 1906.[6]  

For years, the NCAA relied on the defense of “amateurism” to prevent NCAA athletes from receiving pay. Former NCAA president Mark Emmert testified that it is “the interpretation of everybody who’s been a part of the NCAA for a hundred years” that amateurism means athletes don’t get paid.[7] In the last ten years, however, the NCAA’s defense of amateurism has slowly begun to crumble with cases such as O’Bannon v. NCAA[8] and NCAA v. Alston.[9] Those two cases have been characterized as the beginning of the end to the NCAA’s amateurism defense because the practical result stemming from those cases prevents third parties from using college athletes’ names, images, and likeness (NIL) without compensation.

Following the Alston case, most states have passed legislation allowing NCAA athletes to receive compensation on their NIL and preventing the NCAA from barring their participation in college sports for receiving compensation.[10] In response, the NCAA implemented an interim policy permitting college athletes to profit from their NIL regardless of whether their school is in a state with legislation allowing such profits.[11] The NCAA, however, maintains that the rules prohibiting “pay-for-play” remain in effect.[12]  

2024 was a year of many wins in NCAA athletes’ efforts toward gaining employee status. The first major win came on February 5, 2024, when the National Labor Relations Board recognized Dartmouth College men’s basketball players as “employees with a right to unionize under the National Labor Relations Act.”[13] The regional director determined that the Dartmouth men’s basketball players qualify as employees, reasoning that “Dartmouth exercises the right to control the work performed by the team, and the players perform this work in exchange for compensation.[14] The conclusion was further supported by Dartmouth College’s extensive control and supervision over the athletes, including scheduling games, practices, and team activities, arranging travel and meals, ensuring player safety, and organizing personal matters such as scheduling the players’ haircuts.[15]

Another win for the athletes came in July of 2024 in the House v. NCAA settlement, where the NCAA and the power conferences “agreed to allow college athletes to receive pay directly from the universities they compete for.”[16] As a result of the settlement, the NCAA will pay $2.7 billion in back-pay damages to former Division I (D-I) athletes, and the settlement also allows for up to 22% of future revenue share between the conferences and athletes.[17] If the settlement is granted final approval in April 2025, direct revenue sharing with the athletes will begin in July 2025.[18] 

A third win for NCAA athletes came in Johnson v. NCAA where several NCAA D-I athletes argued that “they were entitled to federal minimum wage compensation for the time they spent representing their schools.”[19] The NCAA defended the suit by arguing that NCAA athletes “are not, and historically have never been, considered employees of their respective schools or the NCAA.”[20] The court applied the economic realities test, which requires a more holistic approach, focusing on “the circumstances of the whole activity”[21] and held that NCAA athletes “may be considered employees under the [Fair Labor Standards Act (FLSA)] when they (a) perform services for another party, (b) ‘necessarily and primarily for the [other party’s] benefit, (c) under that party’s control or right of control, and (d) in return for ‘express’ or ‘implied’ compensation or ‘in-kind benefits.”[22]

Several NCAA coaches have noted parallels between college and professional sports. Nebraska football coach Matt Rhule remarked that a top quarterback in the transfer portal costs $1-$2 million.”[23] Nonetheless, Rhule supports players’ rights to NIL earnings as “they’re the ones out there doing the work.”[24] Similarly, Bill Belichick likened the college transfer portal to the NFL’s post-draft and free-agency processes, highlighting the involvement of the same agents representing college and NFL athletes in the negotiating process.[25] Reflecting on the evolving landscape, Belichick expressed approval of college players being compensated, noting that while college football is different, the process of acquiring and paying players mirrors the NFL’s process.[26] Former Miami basketball coach Jim Larrañaga offered perhaps the most direct acknowledgment of college athletes becoming employees, stating that he decided to step down as the head coach because college basketball has “become professional” and players are transferring schools for the “opportunity to make money someplace else.”[27] 

The evolution of college sports has brought it closer than ever to professional athletics, with increasing recognition of athletes as employees rather than mere participants. Coaches, federal industry leaders, and legal rulings alike highlight the parallels between NCAA athletics and professional sports, reinforcing the need to adapt longstanding structures to a modern reality. As college sports continue to evolve, ensuring fairness, equity, and support for athletes will be critical in navigating this new era.

[1] Rodney K. Smith, A Brief History of the National Collegiate Athletic Association’s Role in Regulating Intercollegiate Athletics, 11 Marq. Sports L. Rev. 9, 11 (2000).

[2] Id.

[3] Id.

[4] NCAA and the Movement to Reform College Football: Topics in Chronicling America, Library of Congress, https://guides.loc.gov/chronicling-america-ncaa-college-football-reform; Teddy Roosevelt’s Role in the Creation of the NCAA, U.S. Presidents, https://presidents.website/teddy-roosevelts-role-in-the-creation-of-the-ncaa/#:~:text=Roosevelt's%20intention%20was%20to%20establish,the%20NCAA%20we%20know%20today.

[5] History, NCAA, https://www.ncaa.org/sports/2021/5/4/history.aspx; Smith, supra note 1, at 12.

[6] Id.

[7] Jayson Jenks, The NCAA and the Myth of Amateurism (Feb 8, 2021), https://www.nytimes.com/athletic/2316801/2021/02/08/ncaa-amateurism-supreme-court/ (providing an example where Emmert was testifying at the O’Bannon v. NCAA trial where Ed O’Bannon, former UCLA basketball player sued the NCAA for using his likeness in a video game without his consent or compensation).

[8] O’Bannon v. NCAA, 802 F.3d 1049, (9th Cir. 2015).

[9] NCAA v. Alston, 141 S. Ct. 2141 (2021).

[10] Current Name, Image, and Likeness Legislation at the State Level, NIL Network, https://www.nilnetwork.com/nil-laws-by-state/ (last updated Aug. 22, 2022).

[11] Michelle Brutlag Hosick, NCAA Adopts Interim Name Image and Likeness Policy, NCAA (June 30, 2021),  https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx.

[12] Id.

[13] James A. Holt & Cori Smith, NLRB’s Recognition of Dartmouth College Men’s Basketball Team as Employees Could Change Collegiate Sports Forever, Reed Smith (Feb. 12, 2024), https://www.employmentlawwatch.com/2024/02/articles/employment-us/nlrbs-recognition-of-dartmouth-college-mens-basketball-team-as-employees-could-change-collegiate-sports-forever/.

[14] Id.

[15] Id.

[16] Nicole Auerbach & Justin Williams, What to Know About House v. NCAA Settlement and a Historic Day for College Sports, Athletic (May 24, 2024), https://www.nytimes.com/athletic/5517461/2024/05/24/ncaa-lawsuit-house-paying-players/.

[17] Id.; Jason W. Gordon, Jeffrey M. Weimer, Cori Mishkin, & Philip Chang, NCAA’s $2.8 Billion Settlement Leaves Many Questions Unanswered for Universities, Reed Smith (June 2, 2024), https://www.reedsmith.com/en/perspectives/2024/06/ncaas-28-billion-settlement-leaves-many-questions-unanswered-for.

[18] Justin Williams, House v. NCAA Settlement Granted Preliminary Approval Bringing New Financial Model Closer, Athletic (Oct. 7, 2024), https://www.nytimes.com/athletic/5826004/2024/10/07/house-ncaa-settlement-approval-claudia-wilken/.

[19] Johnson v. NCAA, 108 F.4th 163, 167 (3d Cir. 2024).

[20] Id.

[21] Id. at 189.

[22] Id.

[23] HuskerOnline, Nebraska Football Coach Matt Rhule Addresses the State of the Program | Huskers, YouTube (Nov. 29, 2023), https://www.youtube.com/watch?v=PAz2PNDSEEQ.

[24] Id.

[25] The Pat MacAfee Show, Bill Belichick Breaks Down His First Week as North Carolina’s Head Coach | Pat MacAfee Show, YouTube (Dec. 16, 2024), https://www.youtube.com/watch?v=S-dCE-XJWrk.

[26] Id.

[27] Jim Larrañaga, Speech Addressing Decision to Step Down (Dec. 26, 2024).