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Union-Free NCAA Collective Bargaining Idea Gains Backers

michael mccann
·5 min read

Last week saw bold headlines from national media about settlement talks between the NCAA, Power Five conferences and attorneys for the more than 14,500 players represented by the class action lawsuit House v. NCAA. There are reports of a multibillion-dollar deal that would include compensation to players for lost telecast, video game and NIL opportunities and a revenue-sharing model so athletes at major programs would receive a cut going forward.

A settlement in House, which is scheduled to go to trial next January, would spark a new world order for college sports.

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There’s a not-so-tiny problem: Any restrictions on how much revenue college athletes receive going forward would be subject to antitrust challenge.

As Sportico explained, those restrictions are tantamount to price-fixing in that the NCAA, conferences and schools are competing businesses joining hands to set limits on athlete pay. Unless borne through collective bargaining—more on that below—caps and barriers are fair game for lawsuits. There’s no shortage of plaintiff-side antitrust litigators who could, and almost certainly would, challenge them. Maybe the limits would withstand litigation, maybe they wouldn’t. It would take years to find out.

But if revenue caps and other labor restraints—such as on transferring, NIL collectives or athlete discipline—are bargained with a college players’ union, antitrust concerns will greatly diminish. Under the non-statutory labor exemption, wages, hours and other working conditions are generally exempt from antitrust scrutiny when negotiated by management and labor.

That raises another conundrum. It could be years before there’s a wide-scale college players’ union. Under labor law, unions must be composed of employees.

While an NLRB regional director recently recognized Dartmouth men’s basketball players as employees who then unionized, their school is appealing. USC football and men’s and women’s basketball players might be recognized as employees, too, but that would also be appealed. In some states, labor laws would make unionization of public university athletes difficult if not impossible. Meanwhile, there are non-union players’ associations, including the College Football Players Association (CFBPA) and Athletes.org, but they can’t bargain since they are not unions.

In short, the timeline for a House settlement doesn’t align well with the broad formation of a players’ union.

Enter CFBPA executive director Jason Stahl, whose organization now proposes federal legislation that would grant college athletes the right to collectively bargain without becoming employees. Under this proposal, college athletes would secure a collective voice, including through non-union players’ associations. Meanwhile, the NCAA, conferences and colleges would avoid classifying the players as employees but, by bargaining with the players, still reduce the likelihood of antitrust challenges.

Stahl, who details this idea in a newsletter, believes a “hybrid option” that “stops short of full employee classification” but nonetheless supplies athletes with the right to bargain would constitute a pragmatic middle ground.

A former faculty member at the University of Minnesota, Stahl warns the college-athlete-as-employee debate will face “trench warfare” for “years to come” at federal agencies and the courts. Outcomes might hinge on the “political whims” of which governmental and judicial officers make the final call. He says CFBPA has talked with football players at programs across the country. “There does not seem to be an appetite for these types of legal battles over formal employment, unionization and collective bargaining,” Stahl noted in the newsletter.

Stahl envisions non-employee bargaining for college athletes as compatible with modern employment trends. He sees the gig economy, with Uber drivers and similar arrangements, as reflecting Americans choosing “new types of work lives.” These lives, Stahl believes, preserve an independent status while incorporating opportunities to “collectively” seek the betterment of working conditions.

Stahl also mentions there is support in the athletic and academic communities for alternative approaches. Last year former Notre Dame athletic director Jack Swarbrick proposed collective bargaining for college athletes without them becoming employees. A dozen years ago, University of Illinois labor law professor Michael LeRoy authored “An Invisible Union for An Invisible Labor Market,” which advocated a “unique and limited” form of collective bargaining for college athletes.

Would Congress entertain the kind of idea Stahl suggests? In a phone interview, Stahl acknowledged Congress has held headline-grabbing hearings on college athletes’ rights in recent years but has not advanced any legislation out of committee. He also recognized that 2024 is an election year when members will be away campaigning, and that the country is mired in a turbulent period with college campus protests, a divisive presidential contest and multiple wars overseas implicating U.S. interests.

That daunting alignment doesn’t deter him.

“The best response to a chaotic world is to try to do good—let’s not complicate it.” Stahl said. He added that members of Congress from both parties have pushed for NIL-related legislation, so they have a track record of working together on players’ rights. Stahl said the employment debate is more partisan and that partisanship could slow reform, which is why he contends CFBPA’s proposal is sensible.

One potential critique of Stahl’s idea: If college athletes are employees, shouldn’t they be deemed employees like their classmates who are employees and not an alternative classification that suggests they hold an inferior status?  From graduate students to student dining hall workers, there has been a recent push across college campuses in America for employee recognition and unionization. One might argue college athletes, who are the labor behind the multibillion-dollar college sports industry, ought to be employees, too.

In response, Stahl emphasized that through collective bargaining, college athletes would gain employment-like protections, including direct input on how they are treated by schools.

Two CFBPA vice presidents raised other points. Maddie Salamone, who played lacrosse at Duke, noted that college students employed in campus jobs are often compensated on an hourly basis and not expected to perform work outside those hours, whereas college athletes are more continuously working, including by training and preparing. Justin Falcinelli, who played football at Clemson, similarly stressed that college athletes are expected to dedicate their time to their sport in ways distinguishable from other types of student workers.

The VPs’ remarks suggest different employment structures for college athletes versus other types of college student workers are to be expected.

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