Are college athletes students or employees? NCAA’s legal hurdles

The NCAA transfer portal is open for business and brimming with top-tier football talent, like Florida University running back Trevor Etienne. More than 1,400 players have entered the portal as of Wednesday morning, Dec. 13, according to On3.

As the transfer portal gets more action than ever before, the NCAA is facing a lawsuit over restrictions it still places on player transfers. Seven state attorneys general sued the NCAA over transfer waivers, claiming college athletes should be able to transfer schools whenever they want without penalty, just like any other college student.

As it stands, college athletes are allowed one transfer without penalty but must secure a transfer waiver to switch schools more than once without having to sit out a year. NCAA waivers are granted on conditions of physical or mental health or other stipulations.

On Wednesday, a federal judge issued a temporary restraining order against the NCAA, allowing second-time transfers the opportunity to immediately play without a waiver. The order is in response to the antitrust lawsuit brought by seven states. A hearing on the restraining order is scheduled for Dec. 27.

If you look at the history of recent lawsuits against the NCAA, they will lose this one.

David Ridpath, sports business professor, Ohio University

“The issue of transferring is something that college students, what we call normal college students, can do as a matter of course,” said David Ridpath, NCAA expert and sports business professor at Ohio University. “The fact that college athletes were restricted, and heavily restricted in transferring in the past, is really an employer-employee agreement.”

Multiple lawsuits against the NCAA challenge the student-athlete standard at universities. While the NCAA has long maintained that college athletes are not employees, recent rulings have opened the door for athletes to receive compensation.

For now, that compensation comes in the form of Name-Image-Likeness, or NIL, agreements and collectives. But recently, NCAA President Charlie Baker made a proposal that would allow universities to pay students directly.

As college athletics expands into paid agreements, which is more than likely the direction it is headed, do the athletes need to be students at all?

Until you see senior athletes who can’t read, who can’t write a sentence, it really humbles you and you start to see what a joke the system is.

David Ridpath, sports business professor, Ohio University

Straight Arrow News spoke to Ridpath about the multitude of lawsuits against the NCAA, the possibility of player unionization, and rethinking the full-time-student status for athletes. This interview has been edited for length and clarity. Watch the interview above or read below.

David Ridpath: You can’t restrict college students from transferring. And I would even say – and you can see from a couple of recent lawsuits that were filed – that even what the NCAA is doing now is still really restrictive.

We have to make a decision and I think this is going to be an answer to a lot of the questions you’re going to ask is, “Are they students or are they employees?”

There’s no middle ground here, there’s no carve out. You can’t say they’re students but treat [them] as employees.

And essentially, what we did for years when I worked in college athletics and coached in college athletics, is we had essentially a non-compete clause. We were able to restrict athletes from transferring to really where we didn’t want them to transfer to. And that candidly, at the end of the day, becomes an antitrust violation.

You could use the pun that chickens are coming home to roost. And now athletes have freedom to transfer, at least to an extent right now, at least one time. And then the follow-on transfer would be through a waiver process.

So one, I’m all for it. And then, No. 2, athletes should always have the opportunity – whether it’s Trevor Etienne or Kyle McCord up at Ohio State – they should always have the opportunity to try to improve themselves or find a better situation.

Now, it may turn out to be the wrong decision, Simone, but those are life decisions that you make. I always say this, “If you’re good enough, there will be a spot for you.”

It’s a risk if you transfer. It’s a risk if you don’t transfer. Those are life lessons that you learn.

I’m happy that the athletes have greater freedom. I think it’s a good thing. I think in many ways, it’s made college football more exciting and probably even more balanced.

Simone Del Rosario: You talked about the transfer portal waivers…That is what brought on this new lawsuit that the seven attorneys general brought against the NCAA, saying, that student who happens to play sports should be able to go to wherever they can pursue their best happiness and their best employment opportunities because as you mentioned, they are getting paid a lot of money now to do this. What do you make of this specific case? Do you think this is going to bring down that waiver process altogether?

David Ridpath: I do think so, Simone. And I will say it was only a matter of time. I go back to when this first started and coaches and many friends of mine in the business were like, “Oh my gosh, it’s the Wild West. It’s crazy.”

But what was going on before was really the Wild West. It was just under the table. And we felt better about it because we, for the most part, didn’t know about it.

There was [sic] a lot of nefarious things going on. Right now, it’s out in the open for the most part. And you’re right, and these attorneys general, including the Ohio Attorney General and the West Virginia Attorney General near where I’m from, are absolutely correct. These are students and students should be able to transfer.

We do say, and I don’t say the word too often, we do say “student athlete,” right? Well, we say that when it’s convenient and when we try to make ourselves feel good about what college athletics are supposed to be. But in the end, certainly at the big time level, and you can make the argument even at the lower levels, it’s a business. And the best way to restrict college athletes is to recognize them as employees and collectively bargain those restrictions to avoid antitrust law problems.

I knew that once the NCAA came out a few months ago and said, “We’re going to allow a one-time transfer for all but any subsequent transfers will have to go through a waiver process,” that again, that’s not what students have to do, that eventually a lawsuit would be brought.

I think very clearly, if you look at the history of recent lawsuits against the NCAA, they will lose this one. So the sooner that they can get to the point of, “Hey, we want to negotiate with the athletes as a representative body and negotiate any restrictions, anything,” whether it could be NILs, transfers, anything. Once you do that, then you are immune from those antitrust laws. But until then, the NCAA will certainly be an open target and they’ll likely lose this case in my opinion.

Simone Del Rosario: Do you think that that’s where this is headed? Do you see a player’s association for Division I sports?

David Ridpath: One hundred percent. I don’t really see any other way. And I will say this, Simone, I would love to be able to wave a magic wand and make college athletics what we have said it is. If you look at the history, and I’m a historian of college sports, it’s never really been about education. It’s never really been about amateurism. It’s never really been about that man or woman playing for Old State U and wearing their letterman sweater and getting a great education.

It’s always been a business. It’s always been about winning and revenue generation, even going back to the 1800s. So I think it’s very clear to me that we’re at that tipping point that we knew was always going to come. The only variable was time, that this has to be decided.

And it goes back to what I said earlier. Are they students or are they employees? We can treat them as students and have a student-based educational model that will be much different than what you see today. And I can assure you, ESPN, the coaches, the universities, the fans don’t want that. What they want is competitive, essentially, professional athletics that are attached to colleges and universities.

That’s what we have, we should recognize that. And I can assure you, Simone, whatever model we have, there’s a stadium about 70 miles northwest of me, in Columbus, Ohio, it will be full no matter what, whether we pay the players or not.

So we’re certainly heading, I think, from a legal perspective, to a players association, at least at some level, because that’s really the only way you can avoid antitrust law. You have to give athletes an equal seat at the table, you have to give them the ability to negotiate any rights and restrictions, just like any other professional sport.

Simone Del Rosario: At what point do student-athletes become just employed athletes? Do they need to be students at all?

David Ridpath: I think we have to define what a student is. And there’s many definitions of that. Right now, we try to put a square peg in the round hole. And I don’t say student-athlete, because it’s more of a term of control rather than a term of endearment.

A college athlete essentially has to be enrolled in a full-time program of studies. Now, you see a lot of manipulation in the academic aspect. And I participated in this when I worked in college athletics. Oftentimes, we’re not even delivering on that educational process. Keeping someone eligible, Simone, is not giving them a college education. It’s essentially pushing them through so we can be entertained.

I take a different approach. Look, if college athletes start to get paid, and as a paid employee at most universities…you get free tuition, or at least some tuition benefits. So that would be an opportunity for them to start on a degree but on their own time.

Why should they have to be registered for a full-time program of studies when we’re having them work a full-time job, more than a full-time job, travel around the country. And now we have UW now going to be coming to Columbus, Ohio, to play in a new conference and Rutgers. How does that fit the student equation?

So I say, let’s do it a little bit like Europe does it. Let’s flex the educational options and let somebody maximize their athletic utility when it’s at their height, and for many of them, it is when they’re college athletes.

For instance, Simone, why don’t we do this? You give them a lifetime scholarship: You play for our team, you can take classes if you want, you don’t have to, but you can come back and get your education on your own time.

And maybe even beyond that, instead of saying that you have to come back to Ohio State or University of Washington, how about you get educational credits? Because maybe some of these athletes want to be chefs, want to be actors, want to be auto mechanics, longshoreman; jobs where you can make great living, great money, through a trade, that maybe some of them are more suited to do.

And I’m not saying that they can’t do any academic exercise, because they certainly can. I’m just saying that we need to open up the fact that some people can have a great career and want to have a great career in the trades. But why don’t we give them the education on their own time when they want it? And it can be a desired, and what I would call a more viable, educational opportunity.

We have to get away from this, we’re only watching because these athletes are enrolled full-time. We’re not watching because of that, Simone. We’re watching because we want our team to win. And in many cases, these athletes that are on the field, and sadly I saw it, they’re not really in a full-time program of studies anyways. They’re being shepherded through.

I always say this: Until you see senior athletes who can’t read, who can’t write a sentence, it really humbles you and you start to see what a joke the system is. And I’m not saying this goes on everywhere. But you can look at the University of North Carolina. You can look at what I went through when I was at Marshall University. This goes on.

So for me, let’s just remove that and make the educational opportunity a little bit more broad. And see, now you have online opportunities, you have so many ways that you can get an education. Let’s redefine that and say, “Look, you play here at Ohio State for four years, three years or two years, and you get a certain number of educational credits that you may want to come back and go to school when you’re 30 or 35.” Or you know what, Simone? Maybe you don’t want to, and that’s okay, too.

Simone Del Rosario: David Ridpath from Ohio University. Thank you so much for your thoughts today.

David Ridpath: Thank you so much. I appreciate it.