Would collective bargaining solve college sports' NIL issues? Notre Dame AD: 'You've got to create something new'

WASHINGTON — Fresh off a more than two-hour Senate hearing on college athletics, Jack Swarbrick rose from his witness chair within a spacious wood-paneled committee room on Capitol Hill, stretched his legs, chatted with lawmakers and then, in a striking comment from one of the industry’s leading administrators, offered a solution to the vexing issue discussed minutes ago in this very room.

It’s time for college sports, he said, to bargain collectively with athletes.

“It’s a fairly radical notion, but if we could find a way to reach binding agreements with our student-athletes, most of this goes away,” the Notre Dame athletic director said, referring to what industry leaders say is a chaotic compensation system around name, image and likeness (NIL).

“We don’t have a mechanism to [collectively bargain] without them becoming employees. It would require a new mechanism that would recognize the rights of student-athletes to negotiate for the terms and conditions of their participation as athletes without being employees. I think it’s worth considering.”

For a second time in the last month, one of the industry’s most prominent figures has proposed a plan that could reshape and potentially upend the current model of college athletics. After appearing as a witness in a congressional hearing in September, Ohio State athletic director Gene Smith shared a concept that would require changing the NCAA scholarship structure by making way for more revenue to flow to athletes.

Swarbrick, like Smith having already announced his retirement, took things a step further. While he subtly suggested a collective bargaining model in written testimony to lawmakers, he further explained the concept in an interview with Yahoo Sports following Tuesday’s hearing.

While college leaders fight for a federal bill to govern NIL, Congress should also consider a carve-out, Swarbrick suggests, that opens the door for conferences and/or the NCAA to bargain with athletes over a great many issues: compensation, benefits, hours, etc.

The concept would “mirror” a collective bargaining system seen in professional sports, but “without stripping student-athletes of their student status.”

In order to collectively bargain with non-employees, “you’ve got to create something new,” the 69-year-old former attorney said.

“It would require a piece of legislation that recognizes the rights of students who are athletes to enter into binding agreements with something,” he continued. “There is a challenge here. Are they bargaining with the NCAA or the conference? It can’t be school by school. You need some competitive equity. You couldn’t have one group of student-athletes negotiate for a 10-game season and another a 12-game season.”

What does it mean that two of the most long-standing and respected figures in college athletics are suggesting sweeping changes to the NCAA’s amateurism model? It is an indication of the urgency for the industry to evolve as impending court decisions threaten to, themselves, alter the college landscape.

In fact, as the weeks pass, the more concerning matter for college athletic executives has moved from NIL to the looming slew of legal battles in which it is fighting, including (1) cases that could cost the industry $1 billion-plus in retroactive payments to athletes and former athletes; and (2) cases that could soon deem athletes as employees of their schools, conferences or the NCAA.

As court decisions creep closer, conference commissioners, school presidents and other high-level administrators, like Swarbrick and Smith, are deeply exploring alternative models to employment while encouraging lawmakers to help protect them from the courts. As part of their lobbying efforts, college leaders want Congress to include in any college athlete legislation a concept that deems college athletes as students.

The employment matter emerged as the primary topic during Tuesday’s congressional hearing before members of the U.S. Senate Judiciary Committee.

Without congressional action to prevent employment, NCAA president Charlie Baker, another witness at the proceedings, believes that Division II and Division III schools would “get out of the collegiate sports business” and instead turn into non-scholarship club sports.

“Seems to me we’d want to avoid that,” Sen. Lindsey Graham (R-S.C.) replied, glancing across the hearing room at his fellow committee members.

“If this committee and the [U.S. Senate] Commerce Committee doesn’t act in about a year, this thing is going to be an absolute mess and you’re going to destroy college athletics as we know it,” Graham said.

Several different avenues put college athletes on a path to be ruled as employees.

A case in Pennsylvania (Johnson v. NCAA), currently in an appeals process, could grant college athletes the ability to earn minimum wage. There are also two employment complaints that have been made to the National Labor Relations Board — an entity whose general counsel has expressed a strong belief that college athletes are employees. The NLRB, the independent agency that enforces U.S. labor law as it relates to collective bargaining, is likely to make such a ruling in the coming months.

College athlete employment would lead to another “patchwork” of state laws with “unsustainable” differences like NIL itself, Swarbrick said. Big Ten commissioner Tony Petitti, also a witness at the hearing, described NIL and athlete employment as “unmanaged change” with “unpredictable” results.

Collective bargaining has long been thought as a solution to the industry’s current conundrum. And yet, college executives — and many athletes, too — oppose employment status, a concept that may impact their university-driven resources and benefits, lock them into binding contracts and corner them into specific salaries.

How to create a compensation system before the courts make such a decision is the industry’s now near decade-long plight.

Sen. John Kennedy’s line of questioning Tuesday centered around that dilemma. The Republican from Louisiana strongly encouraged administrators to design a “new system” instead of having Congress get involved.

“You may regret asking Congress to intervene here,” Kennedy said. “All of the sudden, you’re going to be micromanaged.”

The comment drew ire from his colleague on the other side of the aisle, Sen. Richard Blumenthal (D-Conn.). The two carried out a calm but terse exchange. “I want to make clear that there is no effort here to micromanage anything,” Blumenthal said.

In many ways, the exchange is at the heart of a dispute between Republicans and Democrats over NIL legislation (narrow vs. broad legislation). A humbling fact: Since 2019, Congress has held 10 NIL hearings and introduced roughly a dozen bills, and none of them have even taken the first step in passage.

Over that course of time, the NCAA has evolved. Baker, now on the job for eight months, outlined the ways that the association has modernized, such as requiring post-graduate athlete scholarships and healthcare, as well as lifting strict transfer and NIL rules.

But is it enough to gain protections from lawmakers from the courts over employment?

Employment and unionization is a tricky issue and one that often divides the two parties of American politics. For instance, in a speech last month to college athletic directors, Sen. Ted Cruz (R-Texas) claimed that Democrats are less inclined to address employment because of their relationship with trial lawyers and labor unions.

It’s all the more reason for college leaders to create an alternative plan for athlete compensation.

But what?

Swarbrick’s collective bargaining suggestion isn’t a new concept, said Michael LeRoy, an Illinois labor law professor who in 2012 published an article in the Wisconsin Law Review proposing such a model. LeRoy draws comparisons of the concept to the Railway Labor Act of 1926, which seeks to substitute bargaining and arbitration for strikes to resolve labor disputes.

“The idea Congress could legislate collective bargaining rights is actually a tried-and-true idea,” LeRoy said. “I think college athletics is so unique that there are good reasons for a carve-out. I don’t want to sound like I’m endorsing the whole idea — I’m not — but there are elements of it with historical precedent.”

Plenty of other ideas have been floated. This past summer, a group of NIL collectives proposed a revenue-sharing model with conferences. A proposed bill in California would require athletic departments to share a portion of revenue with athletes in high-revenue-generating sports.

Smith, the longtime Ohio State athletic director who is retiring next year, believes that college athletics should alter the scholarship model to include NIL payments directly from the school to athletes, much in the way that institutions pay for cost-of-attendance.

“We give room, board, tuition, cost of attendance and Alston money,” Smith told Yahoo Sports. “What you’d do is add to the scholarship model an amount of dollars for NIL.”

Ramogi Huma, president of the National College Players Association, leads one of several national organizations that have pushed for more athlete rights, specifically around healthcare and well-being. Huma contends that employment would provide athletes protections that are necessary. However, in speaking about Swarbrick’s idea, Huma lauded the administrator for his unique line of thinking and said that “college athletes do deserve to have a say in their futures, their compensation and health and safety.”

So, what happens now?

The U.S. Senate Commerce Committee, believed to have jurisdiction over NIL, is seriously exploring holding a hearing next month. Will an 11th congressional hearing solve the problems and lead to legislation? As global issues keep Congress busy and the presidential election cycle nears, the hill remains steep for any real movement.

Two long-time college athletics leaders, Swarbrick and Smith, seem to realize this fact. The time to wait for both the courts and Congress is over.

Significant changes to the model are necessary. Does that include collective bargaining? Maybe.

“There is no disagreement between us and our student-athletes when we talk to them about these things. That’s the frustration here,” Swarbrick said. “All the same things we are talking about here they are concerned about. I’d love to be able to reach an agreement with them and some [entity] say, ‘We’re going to enforce that agreement.’”