Opinion: Allowing college athletes to unionize could be the answer to the NCAA's problems

·6 min read

Flailing around in the courts and the halls of Congress, its reputation scorched by laziness and mismanagement, the NCAA somehow summoned the gall Thursday to tell five federal lawmakers, “Oh, that wasn’t what we meant when we said we wanted your help.”

To no one’s surprise, the fifth college sports-related bill that will be submitted in the current Congress — this one led by Senators Chris Murphy, D-Conn. and Bernie Sanders, I-Vt., along with three members of the House of Representatives — was about as well-received at NCAA headquarters as a piece of fish being microwaved in the break room at lunchtime.

This new bill proposes allowing college athletes, through the National Labor Relations Act, to unionize at public schools and collectively bargain the terms under which they play sports. It would make them employees, something the NCAA has long fought against.

“This bill would directly undercut the purpose of college: earning a degree,” the NCAA said in a statement. It continued: “We will continue to work with members of Congress to focus on issues that align with our priorities. But turning student-athletes into union employees is not the answer.”

Two members of the U.S. Senate and three members of the House are introducing legislation that would make college athletes at public schools employees of the schools and give them the right to collectively bargain.
Two members of the U.S. Senate and three members of the House are introducing legislation that would make college athletes at public schools employees of the schools and give them the right to collectively bargain.

It’s worth saying up front that the Murphy-Sanders bill seems like quite a tough sell to actually get through Congress and onto President Biden’s desk. For as much anti-NCAA sentiment as lawmakers seem to have these days, unions and labor law is far trickier politically. Given the 50-50 split in the Senate between Democrats and Republicans, garnering support for unions might be a legislative bridge too far.

So when this bill eventually dies, the NCAA will claim it as a victory. But given the trajectory of the NCAA over the last decade, what Murphy and Sanders have proposed could be the answer to most of their problems.

The reason it’s open season now on the NCAA at almost every level of state and federal government and that the future for the entire enterprise seems so uncertain is that its business model has never been accountable to anyone but college presidents for whom athletics is a relatively minor part of their job.

The result is an association paralyzed by its own bureaucracy that spends most of its time playing whack-a-mole on the various crises that arrive on its doorstep.

This plays out on everything from the name, image and likeness rules to the evolving transfer culture to recruiting to enforcement. On its own, the NCAA never actually gets much done on these things because it doesn’t have to. The athletes have no seat at the table to negotiate the rules by which the system operates, so what you end up with is an organization that scurries around trying to plug leaks with bubble gum while the boat is halfway underwater.

Think about what this would mean in practice. Just like the NBA or the NFL, every issue that makes people detest the NCAA would be on the table during a collective bargaining period. How do the transfer rules work? How much money does a player get when a school sells their jersey? How many times a week can you practice and for how long? How much can you work with coaches in the offseason? How much do players have to cooperate with enforcement investigations, and what are the penalties if they don’t? What kind of amenities do players get when they participate in an NCAA Tournament?

These issues have forever driven coaches, administrators, players and fans crazy because it always seems like the NCAA is caught reacting slowly or poorly when something goes wrong. Often, its ham-handed response is rooted in its massive rulebook written by bureaucrats.

Wouldn’t it be easier to just have negotiators for the schools on one side and negotiators representing athletes on another? Whatever they hash out is the way college sports works for a period of time until the agreement expires and they go back to the negotiating table and do it again.

Sometimes, that process is painful and messy. In pro sports, we’ve seen strikes and lockouts and difficult choices made. But at the end of the day, the agreement is there and both sides have signed off on it because they each have incentive to find a compromise that benefits both of them.

Right now, the NCAA can only say it is working to promote the best interests of its athletes. But it is impossible to know what those interests actually are without being represented, and the history of the NCAA suggests that it will actually do the minimum necessary to preserve a one-sided system by giving back a little bit at a time when the pressure gets too great.

That’s what happened in 2015 when so many schools said the world would end if players were given cost-of-living stipends. It worked out fine.

That’s what has happened with name, image and likeness and the NCAA doing everything it could to delay the inevitable while state legislatures around the country forced its hand.

And that’s what is happening with transfers right now, as the NCAA finally relented on allowing a one-time free pass for all athletes after backing itself into a corner by giving out so many hardship waivers that the process looked random and unfair.

In 2015, there was a push to unionize the football team at Northwestern, which was ultimately shot down when the NLRB ruled against the players. Had that effort gone through, it would have been very interesting to see how many private schools would have followed and whether it would have resulted in an advantage recruiting players over public schools.

A lot of experts were surprised by the NLRB ruling at the time, and perhaps the climate today is such that another push like that would produce a different outcome. Fundamentally, it was a great idea. Since the beginning of college sports, schools have been allowed to say “This is the package we offer to you as an athlete, take it or leave it.”

But as the business of college sports has grown to many billions of dollars, it’s become harder for the NCAA to protect the interests of the members schools while simultaneously giving athletes a deal that looks fair. You can’t really do both jobs equally well, and that failed effort has now resulted in lawsuit after lawsuit, intervention from the government and a public relations nightmare.

The NCAA may hate the thought of collectively bargaining with players and all the consequences of making them employees. But if you really want to solve college sports’ problems, it’s the path of least resistance.

This article originally appeared on USA TODAY: Allowing college athletes to unionize could help solve NCAA's problems