In January, during an interview on the podcast Pardon my gripESPN’s senior college football analyst Kirk Herbstreit said the quiet part aloud.
“I say we make players employees,” he said. EMP. “I say we are on the road to unionization. … This is where we are heading.
A month later, the movement to make college athletes employees of their colleges has taken another big step.
On Tuesday, the National College Players Association filed unfair labor practice charges with the National Labor Relations Board (NLRB) against the NCAA office, the Pac-12 Conference, and California schools USC and UCLA as sole employers. and spouses of FBS football players and Division I male and female basketball players. The goal is to affirm employee status for DI basketball players and FBS football players.
This is the latest chapter in an athlete rights movement that has generated sweeping changes to archaic NCAA policies governing athlete compensation and transfer policies. Based on the Supreme Court‘s decision in the case NCAA vs. Alston antitrust trial in June, sentiment in the country began to swing in favor of the players over those responsible – coaches, school administrators and conference officials.
In fact, the NCPA’s attack only comes after the NLRB’s new general counsel, Jennifer Abruzzo, pushed for such a move. In a September memo, she deemed college athletes employees under the National Labor Relations Act, a thundering message from the agency’s senior attorney that urged athletes and athlete advocates to present petitions to organize. The NLRB is the independent body that enforces US labor law with respect to collective bargaining.
Six years after the same board denied football players in the North West the right to unionize as employees, Abruzzo, a president appointed by Joe Biden, opened a door that NCPA executive director Ramogi Huma, hope to open.
“By definition, varsity athletes are employees under labor law,” says Huma. “They are skilled workers in their sport and they receive scholarships. They deserve the rights granted to them under labor laws like all other Americans.
The NCPA is the second entity to file a complaint with the NLRB since the Abruzzo note. Michael Hsu, a Minnesota-based athlete advocate who started a players association for college football and basketball players, filed an unfair labor practices lawsuit against the NCAA in November. Hsu says he is awaiting a decision from the NLRB.
The process is long and winding. Most experts don’t expect a result for at least 18 months after a charge is filed. The NLRB must investigate the filing, request information from the accused parties and possibly issue subpoenas (it has the power to subpoena). If a complaint is filed, a hearing is scheduled before an administrative law judge who ultimately decides the employment status of the athletes.
“I consider this the first shot in a basketball game,” Hsu says. “Did he come in?” Is it an airball? Did he touch the rim? I’m ready to take more pictures.
The NCPA filing charged both a private school (USC) and a public school (UCLA) – a strategic decision. The NLRB only has jurisdiction over private employers, but Abruzzo argued that conferences and the NCAA are joint employers of athletes and that the NLRB’s jurisdiction would thus extend to all schools, says Gabe Feldman, professor of sports law at Tulane.
“If we win, it will apply to the whole country,” Huma says.
The athlete-employee question, the latest wave in the NCAA’s ocean of change, has long been speculated. In September, at an athletic directors’ convention in Washington, D.C., Notre Dame AD Jack Swarbrick told a group, “During this school year, somewhere in the legal world or at the administrative level, a student-athlete will be declared employed.”
Not everyone believes this should happen. In an interview with a Portland radio station last month, Pac-12 commissioner George Kliavkoff disagreed that varsity athletes should be employees.
“They are students first and athletes second. It’s non-negotiable for me.” he said. “You get to a place where we’re talking about professional athletes and it blows the whole model. Let’s go to the natural conclusion. Speaking of professional athletes, then we have a project. You tell a kid where to go to If it’s an employee, do I have the right to fire him?
“The natural conclusion to view student-athletes as employees is very dangerous. It would also mean less investment in other non-profit making sports.
The Supreme Court’s Alston decision, the name, image and likeness (NIL) implementation, and the NCAA’s restructuring have produced a perfect time – a perfect storm, some say – for athletes to be considered employees. There are several avenues in which this could occur beyond an NLRB decision, including congressional or state legislation and court order.
“Every day the status quo seems to be more unsustainable,” Feldman says. “Some significant changes are likely to occur in the near future. There is consensus: athletes should receive more. The question: how do we achieve this while protecting the foundations of college sport?”
Already, the wheels are in motion. Just last week, the Third Circuit announced it will consider whether the athletes are employees owed minimum wage and overtime in a potential landmark class action lawsuit in Pennsylvania. In Congress, senses Chris Murphy (D-Conn.) and Bernie Sanders (D-Vt.) introduced the College Athlete Right to Organize Act.
At the state level, legislation has been introduced to prevent athletes from becoming employers of their schools or to grant them that right.
“What the NCPA is doing is trying to make it more fair and give dignity and respect to these athletes,” says U.S. Representative Tony Cardenas (D-California). “It won’t solve the whole problem, but like professional sports… they have minimums. If you are an athlete, you will earn at least X amount. Maybe the star of the team can negotiate a multi-million dollar contract. But we’ll speak up [amount].”
It’s unclear how the majority of Division I athletes themselves feel. No athlete or group of athletes has filed a complaint with the NLRB. Hsu says his attempts to convince the athletes to file complaints were unsuccessful.
In an expected statement from the NCPA soon, Iowa men’s basketball star Jordan Bohannon said, “The NCAA coined the term ‘student-athlete’ to deprive us of college-athlete protections under the labor laws. This deception harms us physically, academically and economically. … The truth is, like all FBS football and Division I basketball players, I am an employee of my school, my conference, and the NCAA.
However, according to NCAA President Mark Emmert, not all athletes agree. In writing its new constitution, the NCAA saw a strong pushback among athlete groups in abolishing the term “student-athlete,” Emmert said. Athletes were “downright insulted” by the proposed change, he added.
Many administrators balk at the idea of turning college athletes into employees, but many know what’s coming, says Tom McMillen, president of Lead1, a DC-based organization that represents FBS athletic directors.
“Frankly, it could happen very quickly,” McMillen says. “Right now about 90% of my schools would resist, but you could have a whole college sports division and run it like a business.”
Some administrators believe the solution lies in the nation’s capital, where a congressional bill could open a legal avenue for schools to provide athletes with collective bargaining rights and even revenue-sharing provisions. Others suggest that, perhaps, higher education and college athletics are headed for divorce.
‘Everyone wants college football and basketball to be part of higher education,’ administrator says Sports Illustrated in autumn. “I don’t know if we can maintain it.”
Mit Winter, a Kansas City-based sports attorney and himself a former college basketball player at William & Mary, thinks the future of college sports could eventually be separated from their own schools.
“I don’t know if universities and conferences and the NCAA want to participate in a system where they bargain collectively with athletes. That remains to be seen,” he said in an October interview. “There are different models that have been started where sports teams come out of school and are their own stand-alone entities.”
Viewing college athletes as employees would have broad implications for the athletes themselves and their universities. Athletes would be unwelcome in the world of federal taxation. And they even risk being fired by their new employer, the school.
Schools could lose their 501(c)(3) designation, which impacts taxation on bond financing and charitable donations. Tuition fees and public support? These could also disappear, experts say.
It is a complex question. Like a freight train, says one athletic director, it’s swooping down on college sports, bundled with other changes that are rapidly changing the landscape of the industry — for the better, some say; for the worse, say others.
“Employee status is not a guarantee of better rights, but it would certainly allow athletes to negotiate for better rights,” Feldman argues. “Whatever the path, there are downsides to the path. I don’t think a solution is necessarily perfect. For every gain made for one athlete, it may result in less for another athlete.