Why it is in the NCAA’s Best Interests to Recognize College Athletes as Employees
The past decade has seen an onslaught of high-profile litigation against the National Collegiate Athletic Association (NCAA). The litigation has almost exclusively consisted of claims alleging that some of the NCAA’s policies constitute anticompetitive practices under U.S. antitrust laws.[1] In National Collegiate Athletic Association v. Alston, the Supreme Court ruled that, by limiting the education-related benefits schools were allowed to offer student athletes, the NCAA violated the Sherman Antitrust Act.[2] However, the main takeaway from Alston was the concurrence by Justice Kavanaugh, which emphasized that while “the Court does not address the legality of the NCAA’s remaining compensation rules . . . there are serious questions whether the NCAA’s compensation rules can pass muster under ordinary rule of reason scrutiny.”[3] The NCAA saw the writing on the wall. Shortly before the Supreme Court released the Alston opinion, it amended its rules regarding athletes’ use of their name, image, and likeness (NIL). For the first time, college athletes were allowed to profit off their NIL, opening the door to new opportunities, such as personal endorsement deals with brands.[4]
While Alston did not directly implicate NIL, another case brought shortly after Alston did. In House v. National Collegiate Athletic Association, a class of current and former college athletes challenged NCAA rules that “prohibit student athletes from receiving compensation for their NIL from outside employment.”[5] The case settled, and the results were game-changing. Starting in the 2025-2026 academic year, colleges and universities will be able to pay players directly.[6] The settlement will also include $2.8 billion in back pay to college athletes and the creation of the College Sports Commission.[7] This new commission will enforce revenue-sharing rules, ensure that NIL deals serve a “valid business purpose” (not for recruiting purposes), and more.
While the House settlement was groundbreaking, it has not signaled the end of litigation against the NCAA. The District Court for the Middle District of Tennessee granted quarterback Diego Pavia a preliminary injunction that allowed Pavia to transfer to Vanderbilt University for this college football season, despite being ineligible to do so under NCAA eligibility rules.[8] The District Court reasoned that “when the NCAA lifted the restriction on NIL compensation, rules regulating who can play . . . became commercial in nature” and thus subject to antitrust scrutiny.[9]
One of the overarching questions surrounding this litigation is whether college athletes can and/or should be considered employees of the colleges and universities they play for. Recently, a National Labor Relations Board (NLRB) regional director ruled that Dartmouth College basketball players are employees. This decision was upheld pending appeal to federal court by Dartmouth, which allowed the players to unionize for the time being. In Johnson v. National Collegiate Athletic Association, the Third Circuit Court of Appeals held that “college athletes may be employees under FLSA [the Fair Labor Standards Act].”[11] Despite these and other decisions in favor of the classification of college athletes as employees, some legal headwinds have recently pushed back on that. After Donald Trump’s 2024 re-election, the Service Employees International Union (SEIU) Local 560, which was preparing to represent Dartmouth’s men’s basketball team, dropped its attempt to unionize the players to “avoid a potentially damaging precedent from a National Labor Relations Board that will soon be controlled by Republicans.”[12] In addition, the Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act was recently introduced in Congress, and provides, in part, that “no individual may be considered an employee of an institution, a conference, or an interstate intercollegiate athletic association based on the participation of such individual on a varsity team or in an intercollegiate athletic competition as a student athlete.” However, one Democratic Senator, Maria Cantwell of Washington, has already expressed her disapproval of the SCORE Act,[14] and getting the sixty votes needed to pass this non-reconciliation bill in the Senate is highly unlikely.
Looking to the future, a potential Democratic presidential administration or another change in NLRB leadership may again motivate college athletes and their supporters to take concrete action, such as another NLRB petition, to achieve employee status. As much as the NCAA may want it to, this problem has not and will not go away. Therefore, given the past losses in federal court, the movement towards college athletes being classified as employees, and the small chance of legislation being passed to prevent that, it may be in the best interests of the NCAA to recognize college athletes as employees. If the NCAA and its athletic conferences such as the SEC and Big Ten want to maintain a level of control over the college sports industry, their leaders must recognize that they cannot go back to the pre-NIL days of college sports. They must realize that it is not sustainable to allow losses or settlements in court, and the monetary damages that come from them, to keep piling up.[15] If the NCAA and its conferences want to continue to dictate the rules regarding transferring schools[16], GPA requirements, NIL rights, and more, they would be best served by taking a proactive approach by recognizing college athletes as employees and engaging in collective bargaining with the union(s) on their own terms. While the NCAA and its conferences would have to give up a lot in hypothetical negotiations, it would save them from more expensive litigation, generally keep them in control of their industry, and lead to the much-needed stability of college sports.
Bradley Rosen is a second-year law student at the Benjamin N. Cardozo School of Law and a Staff Editor at the Cardozo Arts & Entertainment Law Journal. Bradley is interested in sports, antitrust, and labor law. He is also the current treasurer for the Cardozo Sports Law Society.
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[1] Sherman Antitrust Act of 1890, 15 U.S.C. §§ 1-38.
[2] Id.; National Collegiate Athletic Ass’n v. Alston, 594 U.S. 69 (2021).
[3] Alston, 594 U.S. at 108-09 (Kavanaugh, J., concurring).
[4] Sara Coello, What is NIL in College Sports? How do Athlete Deals Work?, ESPN (Mar. 24, 2025), https://www.espn.com/college-sports/story/_/id/41040485/what-nil-college-sports-how-do-athlete-deals-work [https://perma.cc/9U3P-K3QE].
[5] House v. National Collegiate Athletic Ass’n, 545 F. Supp. 3d 804, 808 (N.D. Cal. 2021).
[6] Dan Murphy, Judge OK’s $2.8B Settlement, Paving Way for Colleges to Pay Athletes, ESPN (June 6, 2025), https://www.espn.com/college-sports/story/_/id/45467505/judge-grants-final-approval-house-v-ncaa-settlement [https://perma.cc/R8RY-QXDW].
[7] Id.
[8] Pavia v. National Collegiate Athletic Ass’n, 760 F. Supp. 3d 527 (M.D. Tenn. 2024).
[9] Id. at 537.
[10] Trustees of Dartmouth College, 373 NLRB No. 34 (2024); Jimmy Golen, Dartmouth Men’s Basketball Team Votes to Unionize, Though Steps Remain Before Forming Labor Union, Associated Press (Mar. 5, 2024), https://apnews.com/article/dartmouth-union-ncaa-basketball-players-2fd912fade62ffd81218a6dc91461962 [https://perma.cc/C2K3-7C8U].
[11] Johnson v. National Collegiate Athletic Ass’n, 108 F.4th 163, 180 (3d Cir. 2024) (emphasis added).
[12] Jimmy Golen, Dartmouth Basketball Players End Their Unionization Attempt in Anticipation of Shifting NLRB, Associated Press (Dec. 31, 2024), https://apnews.com/article/dartmouth-union-ncaa-cd01a33192c19e41e45ff74e84589097 [https://perma.cc/TG3M-H2TQ].
[13] Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act, H.R. 4312, 119th Cong. (2025).
[14] Steve Berkowitz, Democratic Senator Blasts NCAA College Sports Bill in Letter to School Leaders, USA Today (Aug. 25, 2025), https://www.usatoday.com/story/sports/college/2025/08/25/ncaa-college-sports-bill-maria-cantwell-letter/85810971007/ [https://perma.cc/Z3BD-V8CE].
[15] See, e.g., House v. National Collegiate Athletic Ass’n, 545 F. Supp. 3d 804, 808 (N.D. Cal. 2021).
[16] See Pavia v. National Collegiate Athletic Ass’n, 760 F. Supp. 3d 527 (M.D. Tenn. 2024).
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