Advertisement

UAB Players Joining Athletes.org Means Time for Labor Law Refresher

michael mccann
·6 min read
1

UAB football players becoming the first entire roster to join Athletes.org is a significant development in the path toward college athletes amplifying their voice on economic rights. It marks a group of DI players uniformly viewing the pursuit of representation of the same mind and turning the page on the NCAA’s traditional view of amateurism.

The players were reportedly urged by their coach, former NFL QB Trent Dilfer, to join. They will gain access to an organization that can provide them important services, including legal representation and access to health care professionals.

More from Sportico.com

But the law can often play a limiting role, and that is important to stress in this development.

Athletes.org is not a union, the formation of which under labor law requires—among other things—a group of employees organizing to improve their working conditions and subsequent approval by the National Labor Relations Board or state labor agency. It is instead a non-profit organization that functions as a trade association, meaning an entity whose members are persons or businesses with common interests. A trade association can charge dues, set rules and provide members services, including the negotiation of licensing contracts and the lobbying of lawmakers.

Likewise, UAB players joining Athletics.com does not make them employees or independent contractors and does not change their relationship with the school. It means they have voluntarily joined an association that will look out for them but not as employees.

For years, the NFL was a trade association under 501(c)(6) of the Internal Revenue Code. That designation gave the league—but not its 32 for-profit teams—a tax exemption. It was perfectly lawful, too, since a trade association can take many forms, including a multibillion-dollar pro sports league that acts on behalf of its member teams in terms of organizing games and setting rules. Other examples of trade associations include the American Bar Association, which is an association of attorneys, and the American Hotel and Lodging Association, which represents hotels and other providers of lodging.

Crucially for college athletes and their teams, a trade association does not oversee the relationship between employees and employers. It therefore cannot collectively bargain on behalf of employees or anyone else.

That limitation poses sizable and relevant legal ramifications. Contracts negotiated by trade associations are not protected by the non-statutory labor exemption, which reflects a series of U.S. Supreme Court decisions. Those decisions held that to incentivize management to negotiate wages, hours and other working conditions with employees, restraints on those matters are exempt from Section 1 of the Sherman Antitrust Act when negotiated with a union.

The non-statutory labor exemption is what makes major pro sports leagues tick since it exempts essential rules from antitrust scrutiny. For example, the NFL and NFL players’ union, the NFLPA, can agree to salary caps, free agency restrictions and eligibility rules that would otherwise run afoul of antitrust law.

The NCAA would surely benefit from access to the exemption, especially since the NCAA’s days of deferential antitrust scrutiny ended in NCAA v. Alston. The NCAA has come up short in recent cases involving restrictions on transfers and NIL collectives in part because those rules are problematic under antitrust law. The NCAA is a collection of competing businesses (i.e., conferences and the schools). When those members join hands to limit economic competition, including as to how a school could compensate a recruit, the members encounter the sometimes frightening world of antitrust law and the risk of treble damages. The presence of a trade association doesn’t change that. What the NCAA ironically needs most is a players’ union since it could bargain restrictions that promote amateurism goals and contemplate sensible rules (such as on players transferring schools) and that, because those restrictions have been bargained, are exempt from antitrust scrutiny.

There’s already one group of collegiate employee-athletes: players on the Dartmouth men’s basketball team. NLRB regional director Laura Sacks recognized them as employees within the meaning of the National Labor Relations Act and authorized them to unionize. While management, Dartmouth College, has thus far refused to bargain and has petitioned the agency’s board to review Sacks’ ruling, the players could—if they wish—demand unpaid wages by suing the school under the Fair Labor Standards Act and New Hampshire wage laws.

Other college athletes could become employees, too. The U.S. Court of Appeals for the Third Circuit is currently reviewing Johnson v. NCAA, which argues that college athletes are employees under the FLSA, and an administrative law judge is reviewing whether USC football and men’s and women’s basketball players are employees of their school, conference and the NCAA. It’s expected that other athletes will seek employment and union recognition this year, including under state labor laws. They are expected to face resistance by their schools.

As recently detailed by Sportico, a school could voluntarily recognize athletes as employees and would have reasons to do so. That is unlikely to happen anytime soon. NCAA member schools contractually agree to follow NCAA rules, including those that prohibit pay-for-play. Those schools are also members of conferences that have similar contractual obligations. A school that refuses to follow a membership rule can be sanctioned, expelled or even sued for breach by the membership association.

Whether collegiate employee-athletes can unionize is a very complicated topic that does not have a one-size-fits-all answer. It depends on such factors as whether these employees work at private or public universities, in which state their employing school resides and whether their athletic conference and/or the NCAA could be considered a joint employer. The NLRA governs private colleges, but not public ones, some of which are in states where under existing labor laws unionization would be disallowed.

Also, as Dartmouth men’s basketball players’ attorney Jake Krupski–a seasoned labor lawyer–explained in an exclusive Sportico interview, unionization is a grass roots pursuit. It is not top-down, especially not from management or a coach, and is not automatic. Athletes on a team or teams at a college would need to file an election petition and hold an election. The bargaining unit would depend on how it is formed—in other words, whether the football team wants to join hands with the volleyball team would need to be resolved organically.

Athletes.org or a similar association could negotiate licensing agreements on behalf of athletes who join it and supply various other services, but because trade associations are voluntary, Athletes.org would benefit from entire rosters, like those at UAB, agreeing to join. A scattering of players from various rosters could make group licensing extremely difficult to pursue. Any agreements negotiated by a trade association would also be subject to antitrust scrutiny.

Best of Sportico.com