P L McDonald Law LLC

1800 JFK Boulevard, Suite 300 | Philadelphia, PA 19103

Paul L. McDonald
267.238.3835
paul@plmcdonaldlaw.com

June 12, 2024

U.S. House of Representatives

Committee on Education and the Workforce

Dear Distinguished Members of the Committee:

I am Co-Counsel for the College Athlete Plaintiffs in the pending case Johnson v. NCAA and named by
Sports Illustrated as one of The 20 Most Influential Black Figures in College Football. See Richard Johnson,
“The 20 Most Influential Black Figures in College Football,” Sports Illustrated, Feb. 27, 2023.
I respectfully submit this letter for the markup of H.R. 8534, the Protecting Student Athlete’s Economic Freedom Act
on Thurs., June 13, 2024.

I’ll be brief (understanding the many demands upon your time).

1. The Constitutional Requirement of Equal Protection Bars H.R. 8534 Sec. 2.

H.R. 8534 Sec. 2 provides that a College Athlete may not be considered an employee of a college, etc.
But any legislative provision that singles out College Athletes to be denied the same hourly
employee status, rights and pay as fellow students in Work Study-style programs violates Equal
Protection under the Constitution.
Here’s why:
As set forth in Johnson v. NCAA (Complaint, attached), 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 (incl. non-subsidized programs and jobs).
When two groups of students are functionally the same, no law can deny one group protections
afforded the other.
For more than 50 years, students (incl. those on academic scholarship) have been college employees paid
hourly, on a minimum wage scale, when they perform supervised non-academic tasks that benefit a
college in campus offices, dining halls, libraries – even when taking tickets and selling hot dogs at NCAA
games. (Supervision, i.e., control, is the key factor – and the reason groups listed in student-run organization
directories are not considered employees.)
Colleges describe Work Study-style programs as beneficial to student participants and their families. Hourly
pay is fungible, “walking-around” money that can be spent on anything. By contrast, scholarship funds can
only go toward approved academic expenses. In effect, hourly pay provides, or saves, money that otherwise
must come out of the pocket of students and their families.
No college complains Work Study-style programs are unaffordable or that related compliance is burdensome.
The real kicker:
• under NCAA Division I Bylaw 17.1.7.3.4, College Athletes are required to maintain timesheets just
like students paid hourly in Work Study-style programs.
U.S. House of Representatives
Committee on Education and the Workforce
June 12, 2024
Page 2

The NCAA and its members have never answered this simple question, which I encourage you to ask:
Question: What’s wrong with using NCAA-mandated timesheets to fold College Athletes into
existing Work Study-style programs and pay them a reasonable, hourly wage – e.g., $15 an hour – on
par with fellow students employed by colleges?
(Remember, students selling hot dogs at NCAA games – some on academic scholarship – are
college employees. How does it make sense to deny the only labor essential to NCAA sports
– College Athletes – the same status, rights, and hourly pay?)
Former Michigan football coach Jim Harbaugh was on board, stating during the 2023 Big Ten Championship
media call: “Who could be against the players being compensated for what they do? At least even minimum
wage …. I would take less money for the players to have a share.”
See Brandon Brown, “Jim Harbaugh Continues To Push For Player Compensation,” Sports Illustrated
Wolverine Digest, Nov. 27, 2023.
In fact, in lieu of adding reasonable hourly pay for College Athletes to budgets, colleges could maintain
budget neutrality, at no extra cost, by reallocating just a fraction of the combined, highest salaries of athletic
directors, coaches, and staff in athletic departments. Colleges have been overpaying athletic staff (much more
than faculty) – and overspending on athletic facility amenities – because College Athlete labor has been free.

2. H.R. 8534 Sec. 2 Is Inconsistent with Populist Politics.

H.R. 8534 Sec. 2 not only runs afoul of Equal Protection under the Constitution. It also values, and sides with,
overpaid coaches and free-spending athletic facility administrators over the Working-Class Families of
College Athletes, who could use reasonable hourly wages to replace the “walking around” money that
otherwise must come out of parents’ pockets.1
***
As currently written, H.R. 8534 Sec. 2 would be struck down in federal court and could undermine
populist bona fides in the court of public opinion.
There is another path.
In NCAA v. Alston, Justice Brett Kavanaugh noted that if NCAA compensation rules turn out to be illegal, the
question remains: what is a financially sustainable way of fairly compensating all College Athletes in compliance
with Title IX?
The simple solution: use NCAA-required timesheets to fold College Athletes into existing
Work Study-style programs and pay them comparable hourly wages.
Attached is proposed language to effectuate this simple solution and amend (replace) Sec. 2 of
H.R. 8534.

1It’s important not to conflate hourly pay with sponsorship deals offered to some for use of Name, Image and Likeness
(NIL). A third-party cannot discharge an employer’s duty to pay an employee. And because NIL is based on individual
popularity, NIL side effects include compensation disparities – arguably, inequities – between genders, across sports, and
within team locker rooms. Hourly pay assuages NIL side effects because it is based on standardized hours of
participation – perhaps capped at 20 hours per week – so all are similarly compensated.
U.S. House of Representatives
Committee on Education and the Workforce
June 12, 2024
Page 3

If any of this is unclear – or if you have any other questions2 – let’s set up a time to discuss.
I can be reached anytime on my cell: 773.208.3976 (incl. evenings and weekends).
Thanks for your consideration. Take care and stay safe.
Respectfully,

Paul L. McDonald
Attachment

2It’s worth noting that a “parade of horribles” has never been evidenced, nor complained of, in more than 50 years of
Work Study-style programs.
Established Work Study-style protocols answer nearly all questions related to folding College Athletes into such existing
systems. College tax liabilities? No problem – student employment by colleges is exempt from FICA. International
athlete eligibility? No problem – F-1 visa holders can be paid for a 20-hour work week (as in NCAA Division I Bylaw
17.1.7.1) when on campus or at an educationally affiliated organization.
Considerations specific to NCAA sports can be addressed. For example, a boilerplate NCAA employment contract
should prohibit “firing” for dropping a pass, missing a shot, etc., just like NCAA Division I Bylaw 15.3.4.3 prohibits
reduction or cancellation of a scholarship “[o]n the basis of a student-athlete’s athletics ability, performance or
contribution to a team’s success.”
U.S. House of Representatives
Committee on Education and the Workforce
June 12, 2024
Page 4

PROPOSED AMENDMENT TO H.R. 8534 - PROTECTING STUDENT ATHLETE’S ECONOMIC FREEDOM ACT

SEC. 2. EQUAL PROTECTION IN EMPLOYMENT STANDINGS.

(a) IN GENERAL.– Student athletes shall enjoy the same federal protections and rights that are
generally applicable to all students enrolled at institutions under federal laws, and shall be eligible
for compensation on at least the same terms and conditions as all students enrolled at
institutions as required under federal laws
1) ACCOMMODATION FOR WORK STUDY AND SIMILAR STUDENT EMPLOYMENT
OPPORTUNITIES SUPERVISED BY AN ASSOCIATION, CONFERENCE, AND/OR
INSTITUTION. – To preserve the integrity of the educational programs of institutions,
and in recognition of the substantial time constraints on student athletes related to their
required participation in training sessions, practices and contests supervised by staff of
an association, conference, and/or institution for the purpose of varsity intercollegiate
sports competition, an association, conference, or institution –
A. shall not permit a student athlete to participate in work study or similar
student employment opportunities during any applicable work week wherein
that student athlete is scheduled to engage in, or has already engaged in, 20
hours of required participation in training sessions, practices and contests
supervised by staff of an association, conference, and/or institution for the
purpose of varsity intercollegiate sports competition; and
B. shall pay reasonable hourly wages to a student athlete for all hours of required
participation in training sessions, practices and contests supervised by staff of
an association, conference, and/or institution for the purpose of varsity
intercollegiate sports competition –
i. on at least the same terms and conditions as work study or similar
student employment opportunities generally applicable to all students
enrolled at institutions as required under federal laws, except that a
student athlete may not be dismissed from a sport roster during an
academic year for any reason prohibited by an association or
conference, for example, and incorporated herein, reasons set forth in
2023-24 National Collegiate Athletic Association Division I Bylaws
15.3.4.3 and 15.3.5.2 prohibiting the reduction or cancellation of
institutional financial aid based in any degree on athletic ability or
athletic performance;
ii. at hourly rates commensurate with work study or similar student
employment opportunities indexed by occupation titles and
occupational profiles in the most recent U.S. Bureau of Labor Statistics
publication of National Industry-Specific Occupational Employment
and Wage Estimates – NAICS 611300 – Colleges, Universities, and
Professional Schools; and
iii. recording payable hours either on timesheets mandated by an
association or conference, for example, timesheets mandated by
2023-24 National Collegiate Athletic Association Division I Bylaw
17.1.7.3.4, or on timesheets utilized by any work study or similar
student employment program.
U.S. House of Representatives
Committee on Education and the Workforce
June 12, 2024
Page 5

C. HOURLY WAGES LIMITED TO ACTIVITY SUPERVISED BY STAFF OF

AN ASSOCIATION, CONFERENCE, AND/OR INSTITUTION. – No association,
conference or institution shall be obligated to pay hourly wages to any student
athlete or student enrolled at an institution for participation in any
extracurricular activity that is not supervised by staff of an association,
conference, and/or institution, including any extracurricular activity that
operates, or is registered, as student-led, student-organized or student-run.