As Elijah Higgins sat on the witness stand last week, he described the similarities between his experience last season as a rookie with the Arizona Cardinals and the four years he spent playing football at Stanford University.
Five or six days a week at every level of play, he was immersed in football activities: weight lifting, drills, film study, physical therapy and games. There are trips by chartered planes. Free tickets for friends and relatives. Sound coaching staffs set the rules.
Higgins makes some distinctions. There are no classes to take in the National Football League, although at Stanford, he said, academics take a back seat to football, which is why he still has to take a few classes before getting his bachelor’s degree in psychology.
The only other difference is that, unlike Stanford, he now receives a salary. The NFL minimum wage last season was $750,000.
Higgins said that at Stanford, in an environment where critical thinking was encouraged, he began to consider how money drives what he called “the system” of college football, where even at an elite university like Stanford, the pursuit of academics is only encouraged as long as it doesn’t interfere with football.
“I agree with the fact that college football players are non-status employees,” he said.
Higgins was the latest of about two dozen witnesses to testify over the past five months in a National Labor Relations Board hearing that has far-reaching implications on a narrow question: Should USC football and basketball players be classified as employees?
The case may not be resolved for many months. But it will almost certainly end up in an appeals court, which is why it has such a voluminous record: 3,040 pages of transcripts from 21 days of testimony, along with more than 150 exhibits.
The record is so overwhelming that Eleanor Laws, the presiding administrative judge who will determine how the National Labor Law applies to these players, has given lawyers an extra nine weeks to submit their closing written arguments, which are now due by July 31 .
The charges were brought by the NLRB’s general counsel on behalf of Ramogi Huma, executive director of the National College Players Association, which advocates for the rights of college athletes. The defendants are USC along with the Pac-12 Conference and the NCAA, which may have to classify athletes at member universities as employees, even though the board only has jurisdiction over private institutions.
Testimony was often dry, and the hearing, which ended Thursday, drew little attention as multiple attorneys — sometimes as many as 16 — haggled over nitty-gritty details about control and compensation and whether the athletes actually received the USC student-athlete handbook. (Although USC generates $212 million in athletic department revenue in the 2022-23 fiscal year, that’s not relevant to the case, only that there is compensation and control.)
Sometimes the elasticity of reasonable arguments was tested.
For example, Jacob Vogel, director of the USC marching band, spent more than three hours discussing with endless enthusiasm the intricate details of his program, including how band members dressed before football games.
The argument that playing football is little different from playing the tuba was then cross-examined by Amanda Laufer, the lead attorney for the general counsel, who asked how many of the band’s 300 members had no prior musical experience.
“About 10 to 15,” Vogel said.
“No more questions,” Laufer said, pleased to have excelled with the football team.
The case is one of several fronts in the attack on the amateur model of college athletics. Emboldened state attorneys general chipped away at the NCAA’s rulemaking powers. Antitrust cases that could force universities to pay billions in damages are making their way through the courts. And last month, Dartmouth’s men’s basketball team voted to unionize after winning the right to be classified as an employee, a decision the college is appealing.
The NCAA is seeking relief from Congress, but any hope of an antitrust exemption is unlikely to come before the presidential election — if at all.
The arguments before Judge Laws laid out contrasting visions of what college sports would look like if athletes were employees.
One is apocalyptic. The other is sanguine.
Theresa Gould, the newly appointed commissioner of the Pac-12 Conference, which is losing 10 of its member universities to other conferences by August, including USC leaving the Big Ten, testified that high school football stars can be drafted . She also argued that a bad play — say a point guard who committed too many turnovers — could lead not to the player being benched, but to his or her firing.
Sonya Stills, commissioner of the Mideast Athletic Conference, testified that her collection of historically black — and historically underfunded — colleges and universities “couldn’t afford to pay students” who, in turn, couldn’t afford college. if their scholarships are taxable as income. She expected Olympic sports to be shut down if money were to be diverted to athletes. Women’s sports could also be at risk, she said.
And Anastasios Kabourakis, founder of a company that helps international athletes find opportunities to play at American colleges, described how many of those athletes would be excluded because they must obtain work visas in the United States.
Those cataclysmic assessments were dismissed by another witness: Liam Anderson, a distance runner at Stanford, who characterized them as “fear-mongering.” He said not every athlete should be considered an employee and that universities will adjust — just as they have as market forces have affected major college sports through so-called name, image and likeness payments, which are often they do through collectives funded by boosters.
What if college football and men’s and women’s basketball players could get paid as employees?
“I would celebrate that result,” said Anderson, who served two years as co-chair of Stanford’s student-athlete advisory committee.
Anderson’s testimony was among the most compelling during the hearing, which took place in a conference room in a nondescript office building in West Los Angeles.
Anderson described staying at the same hotel in Las Vegas last year during the NCAA tournament as the Arkansas men’s basketball team. A security guard told Anderson it was his job to make sure players didn’t leave their rooms, a sign of control that backed up testimony from former USC football players who said they were required to register for meals with scanned fingerprints and text photos to anonymous attendance checkers to prove they were in class.
A loophole in the board’s byzantine rules allowed Anderson and Higgins, neither of whom attended USC, to testify — even after the attorney general had exhausted his witness list. Because the NCAA had subpoenaed athletes from other universities to testify, the general counsel was able to subpoena rebuttal witnesses who also did not attend USC
Opposing lawyers did not know who would testify until a witness took the stand, a procedure that protects witnesses in Fair Labor cases from intimidation. This often triggers a flurry of computer searches by attorneys with sometimes only about 30 minutes before cross-examination.
In Anderson’s case, that led to him being pressed by Daniel Nash, the Pac-12’s lead attorney, to explain statements he made to The Stanford Daily that contradicted his testimony, including an instance in which he called the idea of pay of college athletes ‘obvious financial impossibility’ in 2021 op-ed.
“My views on it have changed,” Anderson said.
Lauren Herstick contributed reporting.
