When Rich Rodriguez, who has returned to helm West Virginia’s football team, announced his decision to prohibit his players from showcasing their dance moves on TikTok, he didn’t hesitate to explain why.
“We’re working to maintain a tough image or something, and having our guys in tights performing TikTok dances doesn’t exactly fit the picture I have for our program,” Rodriguez stated during a conference held on March 10.
While his announcement quickly faded from public memory, it stayed firmly on the radar of Paul McDonald, an attorney involved in a significant class-action lawsuit that, after simmering in the background for several years, is now gaining prominence.
The NCAA is on the brink of wrapping up a settlement in another case, House vs. NCAA, which focused on the restrictions the NCAA previously placed on athletes seeking to profit from their name, image, and likeness (NIL). The association has consented to disburse substantial sums in damages to former players, allocate revenue sharing for current and future athletes, and embrace a new operational model fit for modern times.
However, there’s another legal battle looming, namely Johnson vs. the NCAA, which tackles a challenging issue for the organization: employment. This is where McDonald comes in, alongside Rodriguez’s TikTok prohibition and similar rules.
In professional sports, players, bolstered by unions, can challenge any coach or team rule perceived as excessive. This isn’t the case in college athletics, where athletes lack employee status and union representation. Coaches’ mandates often become binding, with reputational damage or athlete transfers serving as the main counters—options that are increasingly accessible today. But should athletes be forced into these choices?
The question of athlete employment holds major implications. It could catalyze college athletes’ unionization, paving the way for negotiated rules akin to those in pro leagues, rules that wouldn’t be vulnerable to court challenges. Such changes could see an end to unlimited player transfers, a scenario coaches like Lane Kiffin support.
The NCAA is resisting this due to economic and cultural concerns, while McDonald and others argue it’s a matter of fairness. It’s a multi-layered debate, rich enough for extensive academic exploration. Control is merely one facet of it.
McDonald initiated the Johnson lawsuit on behalf of Ralph Johnson, a former Villanova player, back in 2019, with additional plaintiffs joining over time. The case doesn’t yet have a set trial date, though a judge denied the NCAA’s initial dismissal request four years ago.
Though recent shifts favor athletes—like NIL and unrestricted transfers—McDonald contends that the employer-employee dynamic still looms large.
“Department and coach-imposed rules appear to be getting tougher and more comprehensive, likely in anticipation of revenue sharing under the House settlement,” McDonald noted.
With financial compensation in play, McDonald sees coaches reiterating their expectations for athletes to follow set rules.
The NCAA’s stance is that employeeship and team rules are essential to sports. The debate centers on whether rules also govern off-field behavior.
“On the one hand, the coach’s decree seems foolish on many fronts, reinforcing the notion that team members operate under stringent coach-imposed constraints. Constraints other students don’t face,” commented Marc Edelman, an employment law expert supporting athletes’ employee status rights. “On the other hand, despite being another overreach, it’s unlikely to tilt the scale in proving control—a threshold already crossed.”
Off-field regulations have mirrored the existence of college sports, whether it’s coaches’ refused dorm visits or, in today’s digital age, social media use. For instance, Mark Fox, formerly leading Georgia’s men’s basketball, barred Twitter usage and enforced a strict rule code, including appropriate attire and relationship guidelines. He even authorized surprise apartment inspections—a side effect of school sponsorship, as he justified it.
In 2014, University of Maryland journalists researched athlete regulations at various schools. They found that many required social media password disclosure, with Western Kentucky mandating offline hours. Former athletes will recount similar compliance necessities for team membership.
Employment decisions hinge on several elements, with “control” being pivotal. To what extent can a potential employer regulate a potential employee? In college sports, do such policies indeed signify employment?
Schools might argue that athletes consent to personal conduct and honor codes by enrolling. Coaches thus setting separate rules do not define employment status, says Josh Nadreau, a Massachusetts-based employment attorney. Nadreau provides guidance to athletic departments, including one in the ACC and another in the Big East, though he prefers anonymity. He counseled UCLA in a National Labor Relations Board case in 2023.
Yet, Nadreau admits that stepping beyond essential team regulations risks influencing employment perceptions.
“When offering advice, I suggest emphasizing critical elements needed for team success, avoiding areas outsiders could manipulate to argue employment status,” Nadreau stated.
Terri Stewart, an Atlanta-based employment law consultant, advises schools on this topic. Teams need rules to function, she argued, though whether this equates to employment remains debatable.
“Plaintiffs and union advocates want control to be the focal point of analysis. But it’s just one factor (among many judges consider),” Stewart explained. “Representing defense, we’ll continue countering this for college sports’ future. But plaintiffs will likely target prominent, lucrative performers for their cases.”
McDonald contends that all college athletes qualify as employees, equating them to work-study students or concession workers, supported by the NCAA’s comprehensive 400-page athlete manual and team-specific regulations.
In its legal rebuttal, the NCAA claimed that if college athletes fall under “control” by coaches and schools, then high school players might also be employees.
The NCAA hopes Congress will implement rules to preclude athletes’ employee classification. Meanwhile, the Johnson case might provide judicial resolution.
“These matters are far from resolved,” Nadreau remarked. “While some expect the House settlement to reset the playing field, I don’t share that belief.”
