I know many are quick to jump on Michigan for not throwing money at recruits immediately, or working with their boosters to have them do it. But given some significant unanswered legal questions, I think treading cautiously makes some sense.
As I understand it, the Supreme Court in Alston held that universities cannot prohibit athletes from licensing/profiting off their name and likeness. In other words, a company such as Nike can pay an athlete.
However, what it appears we are seeing (and what many are calling for) are universities collaborating with third parties to provide licensing deals to athletes - i.e., to pay them. This seems to raise a whole host of issues.
With respect to NCAA rules, is this allowed? While an athlete can independently get paid, are universities permitted to facilitate the process - presumably to gain the advantage of having athletes come to/stay at their school? I haven't heard this discussed. Why does an athlete's right to license his name suddenly allow a school to benefit from that by conspiring with third parties?
Perhaps more important, what are the legal implications of schools taking an active role in facilitating getting their athletes paid? Are they equally performing this function for male and female athletes? If not, does this violate Title IX?
Perhaps even more important, does the facilitation of payment by schools, essentially in exchange for athletes playing for them, create an employer-employee relationship? Are agreements between the schools and payor in essence joint ventures? Is money provided conditioned upon the athlete staying at the school, how he performs, etc.? Does the school control the means and manner of the athletes services (practice hours, how much he plays, the athletes schedule, etc.)? I think there is an argument that the payment of actual money in exchange for services where the means and manner of performance is controlled by the payor means that the athletes are not independent contractors but, rather, employees. This then implicates state and federal labor and employment laws - e.g., Title VII and other anti-disrimination laws, the FMLA and state leave laws, workers compensation, etc.
Finally, if an athlete is considered an "employee", there are potential tax consequences Must the school pay employer taxes? Withholdings must be taken - federal, state, FICA.
IMO, there could be a lot to sort out and maybe, just maybe, we should be careful how we navigate this situation.
As I understand it, the Supreme Court in Alston held that universities cannot prohibit athletes from licensing/profiting off their name and likeness. In other words, a company such as Nike can pay an athlete.
However, what it appears we are seeing (and what many are calling for) are universities collaborating with third parties to provide licensing deals to athletes - i.e., to pay them. This seems to raise a whole host of issues.
With respect to NCAA rules, is this allowed? While an athlete can independently get paid, are universities permitted to facilitate the process - presumably to gain the advantage of having athletes come to/stay at their school? I haven't heard this discussed. Why does an athlete's right to license his name suddenly allow a school to benefit from that by conspiring with third parties?
Perhaps more important, what are the legal implications of schools taking an active role in facilitating getting their athletes paid? Are they equally performing this function for male and female athletes? If not, does this violate Title IX?
Perhaps even more important, does the facilitation of payment by schools, essentially in exchange for athletes playing for them, create an employer-employee relationship? Are agreements between the schools and payor in essence joint ventures? Is money provided conditioned upon the athlete staying at the school, how he performs, etc.? Does the school control the means and manner of the athletes services (practice hours, how much he plays, the athletes schedule, etc.)? I think there is an argument that the payment of actual money in exchange for services where the means and manner of performance is controlled by the payor means that the athletes are not independent contractors but, rather, employees. This then implicates state and federal labor and employment laws - e.g., Title VII and other anti-disrimination laws, the FMLA and state leave laws, workers compensation, etc.
Finally, if an athlete is considered an "employee", there are potential tax consequences Must the school pay employer taxes? Withholdings must be taken - federal, state, FICA.
IMO, there could be a lot to sort out and maybe, just maybe, we should be careful how we navigate this situation.
