Football

Alabama Football Players:  Arguably Professionals, But Not Employees

Robert C. Lockwood
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Auburn fans love to claim that the University of Alabama has the best “professional” team in college football.  Rumors of free cars and under-the-table cash payments only fuel this speculation.  Recently, some college athletes have attempted to transform such rumors into reality by arguing that they are “employees” of their schools.  Notably, none of these athletes play for SEC football programs.  So, feel free to draw your own conclusions about the financial benefits of playing football in the South.

In 2014, a Regional Director for the National Labor Relations Board found that football players for Northwestern University were “employees” who were entitled to collective bargaining rights under the National Labor Relations Act.  Northwestern appealed that decision to the National Labor Relations Board.  On appeal, the NLRB punted (pardon the pun).  It declined to exercise jurisdiction over the players’ case, which effectively reversed the Regional Director without actually determining if the players were employees.  In fact, the NLRB explicitly left open the possibility that it might consider the issue in the future.

Members of the track and field team at the University of Pennsylvania attempted a different tactic.  In 2014, they filed a law suit arguing that they were “employees” entitled to minimum wage under the Fair Labor Standards Act.  On February 16, 2016, a federal judge in Indiana dismissed that claim.  Among other things, the judge found “that the existence of thousands of unpaid college athletes on college campuses each year is not a secret, and yet the Department of Labor has not taken any action to apply the FLSA to them.”

In short, Auburn fans can continue to proclaim that Alabama players are professionals.  But, it’s unlikely that a judge will consider them to be University employees any time soon.

Could A Non-Competition Agreement Prevent Will Muschamp from Coaching at South Carolina?

Robert C. Lockwood
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On National Signing Day, an interesting thought occurred to me:  Could a non-competition agreement prevent Will Muschamp from coaching at South Carolina?  Now, the truly-faithful Auburn fans might argue that South Carolina really doesn’t amount to competition on the football field, anyway.  But, for purposes of this hypothetical, let’s assume that Auburn wanted to prevent Will Muschamp from coaching at another SEC school.  Would Alabama law enforce a non-competition agreement in his employment contract?

Non-competition agreements in Alabama are governed by Alabama Code Section 8-1-1.  Here is a link to the November, 2015 edition of The Alabama Lawyer:  Alabama Lawyer. My law partner, Rich Raleigh (on Twitter @RichRaleigh), helped to author a great article in that magazine discussing recent revisions to Section 8-1-1.

I think it would be difficult to enforce a non-compete against a major college football coach.  First, the non-compete must be designed to preserve a “protectable interest.”  “Confidential information” is protectable, as well as “commercial relationships with specific prospective or existing customers or clients.”  Auburn would undoubtedly try to argue that something about its football program (like Coach Malzahn’s playbook) is confidential.  An innovative lawyer might also argue that Auburn’s recruits are “prospective or existing customers or clients.”

More importantly, Auburn would have to show that Muschamp “holds a position uniquely essential to the management, organization or service of the business.”  Many Auburn fans would say that Will Muschamp provided nothing uniquely essential in his management of the defense last year.  Less subjectively, given the high rate of turnover in college football coaches, an argument could be made that there is nothing uniquely essential about a defensive coordinator.

Auburn might also try to argue that it is trying to keep Muschamp from “engaging in a similar business within a specified geographic area.”  But, such restrictions can only be enforced by “commercial entities.”  The new revisions to Section 8-1-1 do not define “commercial entity.”  Therefore, there is a chance that a public university like Auburn might not be a “commercial entity.”

If you are interested, Will Muschamp’s contract does not contain a non-competition agreement.  In fact, it expressly contemplated that Muschamp might leave and required a buy-out.  Here is a link to an AL.com article, which includes a copy of the contract at the end:  Muschamp Contract.