[Goose]

That is because they are conflated legally.



https://en.wikipedia.org/wiki/O%27Bannon_v._NCAA



O'Bannon v. NCAA was originally a NIL case, with Ed O'Bannon arguing that the NCAA rule banning him from receiving money from EA Sports for the use of his image and likeness in a videogame was a violation of the Sherman anti-trust act.  So far, so good, but the remedy from the judge in the case was that the longstanding practice of not paying athletes was illegal, not just NIL.

On August 8, 2014, Wilken ruled that the NCAA's long-held practice of barring payments to athletes violated antitrust laws.[19] She ordered that schools should be allowed to offer full cost-of-attendance scholarships to athletes, covering cost-of-living expenses that were not currently part of NCAA scholarships. Wilken also ruled that college be permitted to place as much as $5,000 into a trust for each athlete per year of eligibility.[20]

BC

As the quote you included shows it was the practice of BARRING payments to athletes that violated the anti-trust laws. This was an action by the NCAA, not by each school acting in isolation. Whether the schools were REQUIRED to pay the athletes was a different issue. Unfortunately, the judge did propose a remedy for the barring of payments by having the schools pay, but I think that was not really the point. I am pretty sure that Stanford can offer a program of football where the athletes participate for their own reasons (learning to play football, because they like it, you know, the same reasons you take calculus). They need not be paid by the school. However organizations like the NCAA and the conferences cannot bar athletes from receiving payments from other parties.

AFAIK, the question "Are college athletes employees?" hasn't yet been answered in the courts. It is probable IMHO that the answer will be "It depends" with a list of criteria. Scholarships conflate the issue even more. Is a scholarship athlete an employee because he is compensated but a walk-on not an employee because he gets nothing? If you volunteer your labor, are you an employee? I would say no, you are not. It is also probably legal for the school to refuse to accept your volunteer labor if you engage in certain practices, like receiving payments from third parties. The problem occurs when the schools a) get paid for the products of your volunteer labor AND b) collude together in conferences and associations to bar the volunteer labor from receiving payments.

There are therefore two issues. The schools colluding together to form associations that restrain trade is clearly illegal. The question regarding the employee status of athletes is a separate one. The remedy proposed in the O'Bannon case was exactly that. A remedy for an illegal situation. It doesn't answer the question about employee status.

[Goose]

That is because they are conflated legally.



https://en.wikipedia.org/wiki/O%27Bannon_v._NCAA



O'Bannon v. NCAA was originally a NIL case, with Ed O'Bannon arguing that the NCAA rule banning him from receiving money from EA Sports for the use of his image and likeness in a videogame was a violation of the Sherman anti-trust act.  So far, so good, but the remedy from the judge in the case was that the longstanding practice of not paying athletes was illegal, not just NIL.

On August 8, 2014, Wilken ruled that the NCAA's long-held practice of barring payments to athletes violated antitrust laws.[19] She ordered that schools should be allowed to offer full cost-of-attendance scholarships to athletes, covering cost-of-living expenses that were not currently part of NCAA scholarships. Wilken also ruled that college be permitted to place as much as $5,000 into a trust for each athlete per year of eligibility.[20]

BC

As the quote you included shows it was the practice of BARRING payments to athletes that violated the anti-trust laws. This was an action by the NCAA, not by each school acting in isolation. Whether the schools were REQUIRED to pay the athletes was a different issue. Unfortunately, the judge did propose a remedy for the barring of payments by having the schools pay, but I think that was not really the point. I am pretty sure that Stanford can offer a program of football where the athletes participate for their own reasons (learning to play football, because they like it, you know, the same reasons you take calculus). They need not be paid by the school. However organizations like the NCAA and the conferences cannot bar athletes from receiving payments from other parties.

AFAIK, the question "Are college athletes employees?" hasn't yet been answered in the courts. It is probable IMHO that the answer will be "It depends" with a list of criteria. Scholarships conflate the issue even more. Is a scholarship athlete an employee because he is compensated but a walk-on not an employee because he gets nothing? If you volunteer your labor, are you an employee? I would say no, you are not. It is also probably legal for the school to refuse to accept your volunteer labor if you engage in certain practices, like receiving payments from third parties. The problem occurs when the schools a) get paid for the products of your volunteer labor AND b) collude together in conferences and associations to bar the volunteer labor from receiving payments.

There are therefore two issues. The schools colluding together to form associations that restrain trade is clearly illegal. The question regarding the employee status of athletes is a separate one. The remedy proposed in the O'Bannon case was exactly that. A remedy for an illegal situation. It doesn't answer the question about employee status.