With the 2022 NCAA Convention having concluded, sweeping legislation was considered and passed. The membership voted to approve a new constitution for the Association. The decentralizing move gives more rulemaking authority to individual NCAA divisions, schools and conferences. What we know for certain is that college athletics will look substantially different in a few years from now than it did a few years ago. 2021 brought in the “NIL era,” where student-athletes can now profit from their athletic fame. Some have argued that name, image and likeness does not go far enough for student-athletes and that they should be entitled to employment income, revenue sharing and health insurance. These provisions would typically be negotiated by employees during collective bargaining.
A bill has been introduced in Iowa that would classify student-athletes at state schools as employees of their respective institutions. The bill is at odds with the newly-passed NCAA constitution, which affirms that student-athletes should not be compensated by institutions for competing in a sport and are not employees. A key topic in college athletics in recent years has been the ability of student-athletes to unionize and collectively bargain, like professional athletes typically do. Importantly, only employees are able to collectively bargain. As of now, student-athletes are not considered employees. In 2015, a group of Northwestern University football players attempted to form a union under the National Labor Relations Act (NLRA). While the National Labor Relations Board (NLRB) ultimately declined to grant the Northwestern football players union status, the NLRB General Counsel recently released a memo outlining her position that college athletes are statutory employees of their institutions under the NLRA. While there are several hurdles for college athletes to be able to unionize, including their status as employees, one hurdle in particular presents a unique challenge to college athletics—the coverage of the NLRA.
Coverage of the NLRA
The NLRA—and the NLRB’s authority—is limited to private employers, not governmental employers. Because the majority of Division I FBS universities are public institutions, they are not subject to the NLRA, and thus, their employees cannot organize under the Act. Only 12 of the 65 Power 5 Conference institutions are private universities, where employees would be eligible to unionize under the NLRA. Employees of governmental entities, like state colleges and universities, can only be given the right to unionize under state law. Even if college athletes one day become employees, the majority of Power 5 Conference athletes would not be able to unionize under federal labor law. Alternatively, it would be up to each individual state to pass legislation allowing for college athletes at state schools to form a union.
Multiemployer Collective Bargaining in Professional Sports
Professional athletes in the four major North American sports leagues (NFL, NBA, MLB and NHL) engage in multiemployer collective bargaining. For example, NFL players are members of the NFL Players Association and employees of each of their respective teams. As opposed to negotiating the terms and conditions of their employment with their individual employers (the teams), the NFLPA engages in multiemployer collective bargaining with a representative of all 32 teams (the league). In the sports context, this makes sense for several reasons. Importantly, the group of teams can negotiate provisions in a collective bargaining agreement that one individual team could not. Topics like the draft, free agency, trades, salary caps, playing schedules and the playoffs can all be negotiated by the league. Without multiemployer bargaining, individual teams would not be able to negotiate any of these issues on their own. Additionally, multiemployer collective bargaining allows the players to negotiate standard conditions of employment for all 32 teams. It is in the players’ interest for each team to have standards for medical staff, trainers, facilities, and travel. Multiemployer bargaining is incredibly beneficial for both the teams and the players.
Challenges with Collective Bargaining in College Athletics
If collegiate student-athletes ultimately become employees of their universities, they likely would be unable to negotiate terms and conditions of their employment through multiemployer collective bargaining. The only potential for multiemployer collective bargaining would be for student-athletes in conferences with exclusively private institutions, like the Big East (before UConn rejoined the conference).
Perhaps more importantly than bargaining with conferences, NCAA student-athletes would not be able to collectively bargain with the NCAA itself. Alternatively, student-athletes would only be able to negotiate with their individual athletic departments—should state lawmakers pass legislation giving them that right. Some states may pass such legislation, others might not. Additionally, states may pass legislation with differing provisions. And student-athletes at private institutions would be left to organize under the NLRA. There could be dozens of different laws giving student-athletes the right to unionize (including the NLRA), with college athletes having different rights and labor tactics available to them. It is not hard to imagine a scenario where student-athletes at private institutions go on strike (a right afforded under the NLRA) during the NCAA basketball tournament, while student-athletes at public schools are not allowed to do so.
For certain groups of governmental employees, like public school teachers, the lack of ability to engage in multiemployer bargaining is not an issue because of the lack of interconnection between their topics of collective bargaining. Teachers in Wisconsin and teachers in Illinois have no need to engage in multiemployer bargaining, because they are not similarly situated enough that there is a need for them to. Teachers do not get drafted or traded between schools like professional athletes do. As it currently stands, the NCAA maintains substantial legislative authority on the topics of eligibility, championships, transfers, and countable practice hours. There are dozens of other topics that student-athletes would want to bargain over if they could. But because of the coverage of the NLRA, student-athletes would not have the ability to bargain over association-wide rules. Otherwise, student-athletes would only be able to negotiate with their individual schools on topics like compensation, facilities, and travel.
In the sports context, multiemployer collective bargaining is critical to an effective labor system. As college athletics continues to transform, there is a greater need for an effective voice for student-athletes. However, a union representing the interests of student-athletes is not an effective option because of the context of college athletics and its connection to government operated academic institutions.
Joshua M. Frieser, Esq. is a college sports lawyer and Principal Attorney at Frieser Legal. His practice is focused on the representation of college athletes and working to solve their unique legal needs. Josh represents college athletes in formal NCAA regulatory proceedings and NIL licensing agreements, as well as in related intellectual property and business planning matters.