Donald Trump considers executive order on NCAA athletes’ employment status

President Donald Trump is considering an executive order that would require federal authorities to clarify whether college athletes can be considered employees of their schools, according to a draft copy of the order obtained this week by ESPN.

The draft calls on the Secretary of Labor and the National Labor Relations Board to “determine and implement the appropriate measures with respect to clarifying the status of collegiate athletes.” The draft states the employment status of college athletes should “maximize the educational benefits and opportunities” schools can provide through their athletic departments.

College sports leaders and several Republican lawmakers have been attempting for the past several years to block athletes from obtaining employee rights, because they say many athletic departments would not be able to afford the added costs that would come with employment.

While Trump’s potential order would not explicitly ban employment (the president does not have the authority to make that decision in an executive order), it does echo those concerns while demanding that the NLRB and Secretary of Labor clarify employee status for college athletes.

The news of a potential executive order was met with surprise around college sports earlier this week, after a CBS News story late Tuesday. Sources cautioned to ESPN that Trump might not go through with the executive order, which appears to be more supportive of college athletics rather than prescribing any specific transformational changes.

The White House press office did not respond to a request for comment.

The order, if signed in its current draft form, would also establish a commission to determine ways in which Trump’s office could support “the preservation of collegiate athletic opportunities,” a process that would include athletes, schools, conferences, lawmakers and other leaders with experience in the industry.

The draft also calls on other federal authorities — such as the Federal Trade Commission, Attorney General and Secretary of Education — to take less concrete steps toward creating policies that would support the future of college sports and the training those programs provide for future U.S. Olympians.

Trump’s office expressed interest months ago in an executive order that would help address some of the current turmoil in the college sports industry but has not yet acted.

Administrators have been asking Congress for several years to create a new federal law to help schools regain some of the power that has been eroded by antitrust lawsuits in the past decade. Those leaders have asked for a law that prevents athletes from becoming employees and provides the NCAA with an antitrust exemption that would allow them to make its own rules — many of which would limit players’ earning potential.

If the NLRB were to decide that college athletes should not be considered employees, athletes would not be able to form a union and collectively bargain for increased pay or other benefits.

Earlier this week, members of the House Commerce Committee voted to move forward with the legislative process on a bill that would grant the NCAA and college leaders the type of protection they are seeking. More than a dozen bills addressing the future of college sports have been introduced in the past five years, but none has yet to reach a full vote in either the House or Senate.

Rep. Jim Jordan (R-Ohio), who chairs the House Judiciary Committee, told ESPN on Thursday that an executive order would not change plans to continue pushing forward with a bill in Congress.

“Our staff has had discussions with the White House about it,” Jordan said. “If and when it comes, it will be in no way contradicting the goals and intents of our legislation.”

Athletes began receiving payments directly from their schools on July 1, a major change to the business of college sports that arrived as a result of a recent antitrust settlement. Each school is allowed to pay up to $20.5 million to its athletes in the coming academic year, according to the terms of the settlement.

The new limits for compensation and the mechanism for enforcing those limits is likely to invite more lawsuits in the future if Congress does not grant the NCAA an antitrust exemption. Trump does not have the authority to grant an antitrust exemption via executive order.

Several football coaches and athletic directors have recently said they believe it would make more sense — and provide more stability — if their players were considered employees and were able to collectively bargain.

“The best way to do it is to make it where players are employees and you have a salary cap,” Louisville coach Jeff Brohm told ESPN earlier this month. “If players are getting paid, why don’t we just do it the correct way? The amateurism isn’t there anymore. Let’s not pretend that it is.”

The new system for compensation treats players as independent contractors who are receiving money in exchange for the rights to use their name, image and likeness in university promotions rather than employees who are being paid for their performance on the field. But contracts between schools and players could potentially strengthen the legal argument that athletes should be granted the rights that other employees have.

Two different groups of college athletes who were petitioning the NLRB for the right to form unions dropped their cases late last year shortly after Trump was elected.

There is one ongoing federal case (Johnson v. NCAA) that argues athletes should be considered employees under the Fair Labor Standards Act. The plaintiff’s attorney in that case, Paul McDonald, has previously argued that any action that blocks college athletes from being employees would be unconstitutional because it would treat the work athletes do as different than the work of other students who hold campus jobs.