Is the NCAA picking up traction on Capitol Hill surrounding athletes' employment?

When the House Committee on Education and the Workforce meets for its markup hearing on Thursday, legislation on college sports will be up for a vote.

The “Protecting Student Athlete’s Economic Freedom Act” was first introduced by Rep. Bob Good last month. The bill would codify athletes are not employees of an institution, conference or association.

In recent months, the NCAA and power brokers have had their attention affixed to crafting the framework of a settlement agreement in the House lawsuit. But Thursday’s markup hearing brings a new twist. After a years-long battle to get Congress to deliver an NIL solution, a bill could move to the House floor.

Unprecedented is a stretch, but the move would be notable. Good’s bill is considered a “rider” bill, meant to be accompanied by a larger piece of legislation. Multiple sources have indicated to On3 in the last 48 hours that the NCAA and power conferences have made employment the top priority on Capitol Hill since the settlement agreement.

Momentum for bill to move to House floor

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 Thursday’s markup.

“We are encouraged to see the progress being made on Capitol Hill to address the many issues facing the future of collegiate athletics,” the release stated. “The advancement of the Protecting Student Athlete’s Economic Freedom Act by the Committee on Education and the Workforce is a significant step forward in reaching a federal solution for many of the challenges currently affecting college sports.

“The recent settlement has only amplified the need for imminent, bipartisan federal action to help secure the future of college athletics. This 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.

Sources indicated to On3 that the odds are high that the “Protecting Student Athlete’s Economic Freedom Act” will make it through the markup and onto the House floor. One source did provide a notice of caution, emphasizing politics always plays a role.

With Republicans holding the advantage, the bill could get through on a party-line vote alone.

“Overwhelming odds in favor of it passing, likely along party lines or close to it,” another source said.

Amendment introduced by Johnson attorney

On Wednesday morning, Paul McDonald, the co-counsel for plaintiffs in Johnson v. NCAA, sent an 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.

The Johnson suit argues athletes should deemed employees subject to the Fair Labor Standards Act. That would require covered employees to be paid minimum wage and overtime pay. A three-judge panel is currently weighing – and has been weighing for more than a year – whether federal district court Judge John Padova applied the correct standard when he denied the NCAA’s initial motion to dismiss the case.

“College athletes meet criteria for hourly employee status under the Fair Labor Standards Act (“FLSA”) more than fellow students employed by colleges in work study-style programs (including non-subsidized programs and jobs),” McDonald wrote Wednesday. “When two groups of students are functionally the same, no law can deny one group protections afforded the other.”

In a question posed to the committee, McDonald asked why the NCAA wouldn’t fold college athletics into work-study programs. For the amendment to even be mentioned on Thursday, a member of the committee will need to introduce it to open up a larger conversation.

NLRB decision looms over NCAA

In early March, the Dartmouth men’s basketball team voted to unionize. The case started in September 2023 when a was petition filed with the National Labor Relations Board by the Service Employees International Union identifying 15 players from Dartmouth seeking representation.

Laura A. Sacks, the Boston-based NLRB regional director, issued the landmark ruling on Feb. 5 that Dartmouth could vote to form a union. The Big Green is not an isolated situation, though.

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 Conference. 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.

It’s because of that the NCAA and leaders are vocally supporting the “Protecting Student Athlete’s Economic Freedom Act” and why Thursday’s markup could be impactful.