Evolving Landscape Provides Path to a College Athlete Union
The landscape for college athletes has changed dramatically in the span of just a couple of years. In the summer of 2021, the NCAA adopted a groundbreaking policy to immediately allow college athletes the opportunity to profit off their name, image, and likeness (“NIL”).[1] The NCAA’s decision came shortly after (and was seemingly influenced by) the Supreme Court’s decision in NCAA v. Alston, where the Court unanimously held that the NCAA has a limited ability to cap the amount of educational benefits a college athlete may receive from their school.[2] To capitalize on their newfound NIL rights, college athletes have to abide by state laws until further NCAA rules or federal legislation are adopted, but more than half of the states have already passed NIL laws that are currently in effect or will be shortly.[3] Nationwide, it is evident the view that college athletes should be afforded similar financial opportunities as professional athletes has become increasingly accepted.
College athletes’ ability to legally profit off their name, image, and likeness is an important milestone for the group to secure a fair and equitable college sports structure; what happens next within the industry is crucial to further this cause. To many, the creation of a college athlete union is the next “evolutionary step.”[4] A legally certified college athlete union would tremendously increase the power college athletes have in their multi-billion dollar industry. It would force the NCAA to sit down at the bargaining table with the athletes, where the NCAA would be statutorily mandated to bargain over rates of pay and wages and hours of employment.[5] In effect, the two sides would negotiate issues ranging from practice schedules and offseason workouts to jersey sales and transfer rules.[6]
Another reason the prospect of a college athlete union is on the horizon is the recent guidance from the National Labor Relations Board (“NLRB”).[7] In September of 2021, the General Counsel of the NLRB sent a memo to all NLRB offices that scholarship college football players (along with select other athletes in revenue-producing sports) are to be considered as employees of their schools under the National Labor Relations Act.[8] Thus, certain college athletes at private universities would have the right to come together to improve the circumstances of their employment (i.e., unionize)[9] While the memo is only guidance and not binding law, it is an extremely strong message that the NLRB would welcome cases from applicable athletes.[10]
The thought of a college athlete union is not a recent development.[11] In 2014, Northwestern University football players became the first group of college athletes who sought to join a labor union.[12] While the effort made its way to the NLRB the following year, the Board dismissed the players’ petition, citing concerns about exerting jurisdiction over the NCAA’s rules.[13] The decision did not, however, directly rule on whether the players are employees, leaving the door open for the question to be answered in the future.[14] The NLRB’s 2021 memo tackled the question head-on, and has led to new efforts to form a college athlete union—though not without difficulties.
One organization that has led efforts to collectively organize athletes is the College Football Players Association (“CFBPA”).[15] The CFBPA visits campuses and outlines to players its main goals, including: independent medical care enforcement, post-football health protections, and a percentage of media revenue for players.[16] Of the CFBPA’s goals, the medical-related points may gain the most traction because their adoption is likely in the schools’ and conferences’ own best interests.[17] Additionally, the main goal of the CFBPA is not necessarily unionization, but rather an agreement on their proposed terms—with unionization available as both a backup plan and a potential threat.[18]
To effectively communicate with a school or conference, the CFBPA’s (or any athlete union’s) success hinges on getting a high-profile player on a high-profile team to lead the charge.[19] For example, at Penn State, the CFBPA was poised to challenge the status quo within the Big Ten with quarterback Sean Clifford as the face of the group, but the effort eventually stalled for various reasons.[20] Despite this roadblock, the CFBPA and other groups will continue to try to organize college athletes throughout the country.[21]
It is not easy to create any union, let alone one in an industry that is going through turbulence. Some argue that unionizing is not worth it for college athletes because it could potentially expose them to unanticipated consequences, such as federal taxation and risk of termination.[22] Many others, though, view unionizing as a viable and advantageous option.[23] This includes federal and state legislators, as bills on both levels have been introduced to allow college athletes to unionize (though these proposals have yet to be enacted).[24]
With the expansion of NIL laws, the new guidance from the NLRB, and the continued efforts from athlete-focused groups, there has never been as much focus on how to structure the landscape of college sports. It now seems to be a matter of when, not if, college athletes effectively capitalize on their value and unionize to ensure better working conditions.
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