Is Nick Saban going to be brought before a grievance panel next week to determine if benching a quarterback, violated the player’s rights under his union’s collective bargaining agreement with the school?
No. Not yet. But that scenario isn’t as crazy as it sounds.
Last week college athletes got one step closer to being recognized as school employees—and maybe even union members as scholarship-athletes at a later date—because of a memo written by the National Labor Relations Board’s general counsel.
Jennifer A. Abruzzo wrote “that certain players at academic institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.” She further asserted that college athletes should be protected by labor laws, including those that protect employees when they make efforts to unionize.
“The freedom to engage in far-reaching and lucrative business enterprises makes players at academic institutions much more similar to professional athletes who are employed by a team to play a sport, while simultaneously pursuing business ventures to capitalize on their fame and increase their income,” the memo said.
This is not a policy change, as such. But what Abruzzo is doing is warning the NCAA that if a ruling is required by the NRLB over the status of these athletes, the NRLD will more than likely designate them as “employees,” and not students who have sports as a hobby.
What will this mean in practice? The National Bureau of Economic Research estimates that if top college football and basketball stars were compensated similarly to professional players—getting 50 percent of the revenues, as professional athletes do—the average salary for college football players would be $360,000 while the average basketball salary would be $500,000.
First, this will not be just private universities facing the wrath of player pay for the NCAA. The private schools may come first, as public universities have different legal rules given that they are owned and operated by state or local government groups. However, if the NRLB rules that private school athletes can unionize, then the big public schools will have to deal with that precedent. If Harvard University players go union, then the Ohio State University players will no doubt explore the option, too. And star players will be incentivized to go to private schools, where they can increase their compensation.
But it isn’t just about the stars in the revenue sports. According to the National Collegiate Athletic Association, more than 180,000 student-athletes receive around $3.6 billion in athletic scholarships in Division I and II sports each year. What will happen when the University of Oklahoma women’s softball team is judged on the same legal issues concerning pay and unionization as the school’s football team?
Second, the NLRB memo isn’t going to change the economic structure of college sports overnight. “This is not a binding opinion. This is an advisory opinion expressing an opinion that has been expressed before, that college athletes should be recognized as employees,” Gabe Feldman, director of the sports law program at Tulane University, told ESPN.
“So, it will not have any immediate impact on college athletes, but given everything else that is happening and all the external pressures from Congress, from state laws, from lawsuits, this is just another signal that the current collegiate model may need to change, and if the NCAA doesn’t change it, change may be forced upon it,” Feldman said.
Third: This process has been in motion for several years already. In 2014, some Northwestern University football players wanted to unionize, but the NLRB board declined to exert its jurisdiction in the case, preserving the notion that college athletes were primarily students. Abruzzo, in her memo, changed course for the agency, writing that the “scholarship football players at issue in Northwestern University clearly satisfy the broad definition of employee and the common-law test.”
Earlier this year the Supreme Court ruled that college athletes can profit on advertising and sponsorship deals from private companies. That ruling brought about the “names, images or likeness (or NIL)” movement where college scholarship athletes can now get paid by local bars or car dealers or national phone product companies to be spokesmen for the business.
Abruzzo wrote that this ruling had basically changed the dynamic on athletes getting paid or not with its NIL ruling. The Supreme Court, in Abruzzo’s opinion, “recognized that amateurism in college sports has changed significantly in recent decades.”
“Justice Kavanaugh, in his concurring opinion, went further,” she concluded. “He strongly suggested that the NCAA’s remaining compensation rules also violate antitrust laws and questioned ‘whether the NCAA and its member colleges can continue to justify not paying student athletes a fair share’ of the billions of dollars in revenue that they generate. Moreover, he suggested that one mechanism by which colleges and students could resolve the difficult questions regarding compensation is by ‘engag[ing] in collective bargaining.’”
One case to keep an eye on is a suit filed by former Villanova University player Ralph “Trey” Johnson, who played at the school as a defensive back from 2013 to 2017. Other former student athletes have joined him in a small class action suit that seeks employee remuneration from the schools from their time being “employed”” as athletes at their schools.
Last week federal judge John Padova ruled against the NCAA’s motion that the Johnson case should be dismissed because the players lack standing to sue since the NCAA never did employ them. Judge Padova disagreed, finding the player’s arguments “plausible” and thus legally sufficient to advance further down the court system road.
Where will this go? Hard to say, but given the possible big changes in how NCAA money will likely get distributed differently, expect some changes in the relationship between the schools and their student-athletes. It might be just a shift from scholarship-only to scholarship-plus pay (for some). Or this NLRB move might be the precursor to the NCAA being totally disrupted as a business with college revenue sports eventually being replaced by professional minor leagues.
“I don’t like to make predictions,” University of Illinois labor law professor Michael LeRoy said, “but I will say, given what I have seen, it’s only a matter of time before there is another (unionization effort involving) a Division I private school football or basketball program. That will likely result in a vote for union representation and then that school will be between a rock and a hard place because the NCAA rules will say you can’t treat these folks as employees.”
At which point the future of college sports will be decided by the courts.