Congress moves bill limiting collegiate athletes from being employees to House floor

The House Committee on Education and the Workforce voted 23-16 on Thursday to move the Protecting Student Athlete’s Economic Freedom Act to the House floor.

The bill, first introduced by Rep. Bob Good last month, would codify athletes are not employees of an institution, conference or association. Landing on the House floor is the furthest any college sports legislation has gone in recent memory, despite more than a dozen bills proposed and drafted on NIL and athlete compensation on Capitol Hill in the last 18 months.

Sources indicated ahead of Thursday’s vote that the legislation would make it through the markup and onto the House floor from a party-line vote alone, which is exactly how the vote played out.

“Athletes deserve the freedom to play the sport they love and receive a high-quality education at the same time,” committee chair Virginia Foxx said in her opening statement Thursday. “Reclassifying these athletes as employees could undermine that freedom and threaten their academic journeys, turning the sports they love into a chore instead.”

For much of the spring, the NCAA and power conferences were worried about agreeing on terms with House plaintiffs on a settlement agreement that would forever reshape college athletics. With that accomplished, the full focus has moved to ensuring athletes are not considered employees.

Good’s bill is considered a “rider” bill, meant to be accompanied by a larger piece of legislation. Athletes.Org and the College Football Players Association – both considered players’ associations – have publicly supported the passage of legislation that would create a non-employee model in college sports that would also allow collective bargaining.

A number of Republicans on the House Committee on Education and the Workforce publicly supported the bill, including Rep. Glenn Thompson (R-Penn.) and Rep. Tim Walberg (R-Mich.). Yet, not everybody from the committee was on board.

“The only freedom the bill protects is the Republicans’ freedom to strip varsity athletes from their rights,” Rep. Bobby Scott (D-Va.) said.

Power 5 supports bill, amendments not put forward

Good’s bill, which is co-sponsored by 10 other members of Congress, received more backing Wednesday morning. The ACC, Big Ten, Big 12, Pac-12 and SEC released a statement supporting the legislation ahead of the markup hearing.

“The recent settlement has only amplified the need for imminent, bipartisan federal action to help secure the future of college athletics,” the conferences said in a release from Firehouse Strategies. “Legislation addresses one of the most critical lingering issues hanging over college sports today: student-athlete employee status. Protecting student-athletes’ status as students, not employees, is vital for preserving athletic and educational opportunities. Categorizing student-athletes as employees of their institutions would cause harm to the future viability of many college sports programs, particularly women’s and Olympic sports.”

The timing of the markup comes as Good faces a crucial primary, set for Tuesday. The U.S. Representative is the incumbent but faces a challenge from John McGuire for the Republican bid in Virginia’s 5th congressional district.

“The NCAA is making changes to provide student-athletes with enhanced guaranteed health, wellness and academic benefits and the association is proud to stand with student-athlete leadership from all three divisions in support of this legislation,” the NCAA said in a statement released after the vote. “College sports are the premier stage for women’s sports, essential to building our country’s Olympic team and provide unmatched educational opportunities to more than 500,000 young people across three divisions and 24 sports every year.

“Building on the proposed settlement, by partnering with Congress to affirm that student-athletes are not employees, we can continue our progress in building a model for college sports that provides fair opportunities and experiences to the broadest number of young people possible.”

Paul McDonald, the co-counsel for plaintiffs in Johnson v. NCAA, sent a proposed amendment Wednesday to representatives on the House Committee on Education and the Workforce. In his letter and proposed amendment, McDonald contends that denying athletes hourly employee status is unconstitutional on equal protection grounds. His amendment was not brought forward in front of the committee.

Can Congress push through legislation?

A Los Angeles-based administrative law judge is still weighing whether USC’s football and men’s and women’s basketball players are employees of the university and/or the NCAA and Pac-12. The NCAA and Pac-12 are charged with being joint employers of the athletes.

The National Labor Relations Act applies to private institutions. But because the Pac-12 and NCAA are charged with being joint employers, the outcome could potentially open the door for athletes at public universities to be deemed employees of their conference or the NCAA.

With the Protecting Student Athlete’s Economic Freedom Act moving to the House, it will not be put on a calendar to be voted on, debated or possibly amended. If passed by a simple majority (218 of 435), the bill moves to the Senate. 

With Republicans slimly controlling the House with 218 to the Democrats 213, there is a chance the bill moves to the Senate. Plus, President Joe Biden could veto the bill. Multiple sources have echoed to On3 in recent months that the odds of legislation getting through during an election year are low.

Beyond that, the Protecting Student Athlete’s Economic Freedom Act does not have bipartisan support. Questions remain if the state laws would trump the legislation, and if it would violate antitrust law as the NCAA has yet to secure an antitrust exemption.

“Once again, Republicans in Congress have decided to plow forward with legislation to limit the rights of college athletes with little to no input from athletes themselves,” Rep. Lori Trahan (D-Mass.) wrote in a statement. “It’s disappointing that GOP members of the Education and Workforce Committee are choosing to advance a bill targeting a hypothetical issue over the very real challenges currently facing athletes, including Title IX loopholes that hurt women and international athletes not having NIL rights.”