For UB sports, a heads-up on what’s next
The world of college athletics is changing dramatically, and two UB Law students are helping the University at Buffalo’s Athletics Department get ready for what comes next.
With the guidance of Professor Helen “Nellie” Drew ’88, who directs the UB Center for the Advancement of Sport, two third-year students—Grant Haffenden and David Reinharz—made a deep dive into cases and policies currently being hashed out in federal and state courts. The main issue: whether college athletes are legally employees of the university, and if so, what would that mean for the policies and budgets of athletic departments?
In Johnson v. NCAA, a lawsuit filed in 2019 in the U.S. District Court for the Eastern District of Pennsylvania, a group of athletes from Division I schools alleged violations of the Fair Labor Standards Act, saying they were entitled to the federal minimum wage for the time they spent as college athletes. Upon review by the U.S. Court of Appeals for the Third Circuit this past July, the court held that the athletes might indeed be considered employees if certain conditions of their service were met. With the warning that “the tradition of amateurism alone” wasn’t sufficient to deny a claim of employee status, the case was remanded to the lower court for reconsideration under an “economic realities analysis grounded in common-law agency principles.”
The uncertainty of how the case will be decided prompted Haffenden and Reinharz to research possible implications for the university and its department of athletics.
Sports Law Round Table
In the Trenches: Representing NFL Players featuring Shane Costa ’13, NFL Agent and Director of Football Operations with Generation Sports Group.
Thursday, November 21
6:30 to 7:30 p.m. via Zoom webinar
Free and open to all. Registration required. Zoom information will be emailed to the address provided at registration.
Co-hosted by the UB Center for the Advancement of Sport and the UB Law Alumni Association.
Grant Haffenden '25
“We are laying out some scenarios and situations for the athletics department to consider,” Haffenden says. “There’s no definitive answer, because we really do not know what’s going to happen.”
UB, which moved to Division I status in 1999, is the largest D1 school in New York State. It fields 16 intercollegiate sports teams involving hundreds of student athletes. As with most schools in the NCAA, and consistent with long-standing tradition, their compensation comes in the form of scholarship aid.
If these athletes were to be considered employees of the university, Haffenden says, New York State laws on such matters as workers’ compensation, parental leave and tax liability would come into play. For example, he says, scholarship aid is not taxed, but that could change if D1 athletes were determined to be employees.
David Reinharz '25
Similarly, he says, under state laws governing workers’ comp, there would be ramifications if a student athlete who has employee status were to suffer a career-ending injury. “I looked at who would be paying the medical bills,” he says, “and if the person got injured in practice or a game, how that would affect the university’s liability. This whole issue of compensation for student athletes has been discussed for at least the last 15 or 20 years in a very serious way, and it may be decided in the next few years.”
Reinharz concentrated his research on the question of unionization and collective bargaining by college athletes.
“It’s especially interesting because UB is a public institution,” he says. The National Labor Relations Board previously ruled in favor of basketball players at the private Dartmouth College, saying they were in fact employees and could affiliate with the Service Employees International Union. A new case out of the Pac-12 Conference, now before the NLRB, could expand that ruling to public colleges and universities as well.
“That has the potential to revolutionize college athletics,” Reinharz says. “I wouldn’t be surprised if we see this terminology changed, and the term ‘student athlete’ may be a thing of the past. It’s a very stark difference. When you’re an employee, there are certain rights you would have that you would most likely not have as a student.
“We just wanted to inform the athletics department and keep them abreast of the situation that’s ongoing. It’s happening without any sort of guidance right now.”
Reinharz points out that bills have been introduced in the New York State Senate and Assembly to mandate collective bargaining rights for student athletes. Both are in committee, and the prospects for their passage are uncertain.
A further unknown element, he says, is that NLRB members serve at the pleasure of the president, and the change in administrations next year may alter the makeup of the board.