GOP lawmakers demand info on Biden-era spending used to declare student-athletes as employees

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FIRST ON FOX: Republicans are demanding records showing the extent to which the Biden administration used taxpayer money to defend its position that student-athletes are employees of the universities for which they play.

Representatives Tim Walberg, R-Mich., and Rick Allen, R-Ga., made the request in a letter to Marvin Kaplan, the National Labor Relations Board's (NLRB) newly appointed chairman, and acting General Counsel William Cowen. They demanded a full accounting of the expenditures incurred during the Biden administration's years-long case against the University of Southern California, the Pac-12 Conference and the NCAA.

President Joe Biden's NLRB argued the entities intentionally obscured the rights of college athletes by labeling them "student-athletes" and not "employees."    

The request for expenditure reports from Walberg, who chairs the House Committee on Education and Workforce, and Allen, who chairs the House Subcommittee on Health, Employment, Labor and Pensions, comes as there is a growing appetite on Capitol Hill to enact reforms for the NCAA's new name, image and likeness (NIL) rules. 

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The rule change allowed student-athletes to profit from their NIL, which was previously prohibited by the NCAA. Walberg and Allen's letter said the expenditure records will "provide important assistance to Congress in determining whether legislative changes are warranted."

"The Committee is concerned that the Biden-Harris NLRB spent significant taxpayer resources pursuing a case meant to curry favor with union interests for nearly three years," the letter states. "The outcome could have upended intercollegiate athletics and stripped numerous scholarship opportunities from American students."

The NLRB's general counsel during the Biden administration, Jennifer Abruzzo, issued a September 2021 memo explaining that the National Labor Relations Act, the nation's primary federal law protecting union organizing, "fully support[s] the conclusion that certain Players at Academic Institutions are statutory employees." The announcement came just a few months after the NCAA began letting students profit from NIL after public pressure and state court cases. 

While the change in how college athletes are treated has been welcomed by many, others have been concerned about the move's potential implications. Earlier this month, the Trump administration rescinded the Biden administration NLRB's September 2021 memo insisting college athletes be recognized as employees under federal labor laws. 

The Trump administration this month also revoked guidance issued by President Joe Biden on his way out of the White House that required schools to distribute direct NIL payments equally to female and male athletes. 

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Aaron Withe, an expert in government unionization and a former college athlete, said he fears continued momentum toward viewing college athletes as strictly employees will destroy college sports. 

"Are unions going to step in between a coach and their athletes for yelling at the players, or because practice went long or because they're making them run an exceptional amount of lines?" Withe wondered. "If you're represented by a union, they're now your bargaining agent. You have no ability to go represent yourself in anything with the university if it is deemed they are your employer. You've got no ability to go negotiate with them anymore."

Withe pointed out that the move could also lead schools to cut sports programs if they are not generating enough revenue, will affect the long-held tradition that meritocracy is the root of athletic competition and increase the financial burden on schools hoping to keep their athletic programs competitive.

"Public institutions, they're already forking over a cost for the NIL deals. Providing college athletes the same protections as typical employees is just going to increase their tax burden because it's going to be paying players that ordinarily wouldn't be getting paid. Schools are going to be forced to pay those guys, so there's going to be a bigger tax bill associated with it," Withe said.

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"Attracting top-tier talent is going to be the hardest thing," he added. "Because you've got a contract among all of your athletes - let's say, for football or basketball or whatever - you can't then go and bring in a superstar, a stud quarterback, because you can't pay them the same level that you could without the union. … Basically, money would sort of have to go over to the bigger revenue-generating sports to compensate everyone equally."

The letter from Walberg and Allen added that, under an employee-employer relationship, student-athletes could be forced to start paying federal taxes on any scholarship funds they receive.

Proponents of the move to classify college athletes as employees say it is high time student-athletes begin getting their piece of the financial pie. 

"Colleges and universities have profited off student athletes for decades. It's the government's job - not its burden - to make sure student athletes' rights are respected and they get their fair share," Karla Walter, senior fellow for Inclusive Economy at the Center for American Progress, told Fox News Digital.

"The Senate and House labor committees should be more worried about the fact that the Trump administration has effectively shuttered the agency charged with enforcing most Americans' labor rights."

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Walter added that unionization is viewed favorably among those who don't have the option to be in one.

"Half of non-union workers say they would join a union if they could, but unionization rates hover around 6% in the private sector," she said. 

"Student-athletes generate tens of millions of dollars for their universities," said Andrew Stettner, director of economy and jobs at The Century Foundation. "Just like anyone else whose labor enriches a broader entity, they have a right under the National Labor Relations Act to collectively bargain for things like revenue sharing, workplace conditions and protections from injury,"

Last year, the GOP-controlled Committee on Education and Workforce passed legislation to prevent college athletes from being considered employees, but it went no further. Texas GOP Sen. Ted Cruz, a proponent of NIL reform, has signaled plans to reform the system.

There is no current federal legislation on the books regulating the NIL framework. However, numerous states have enacted laws to permit NIL payments for recruiting, with the first coming in 2019, two years before the NCAA bowed to pressure and changed its rules. 

"Right now, the current world of college sports is the wild West," Cruz said during a podcast in November. "Name image and likeness, open transfer portals. We are going to address it."