Can College Athletes Unionize?

The question of whether college athletes can unionize has been a hot topic for years. The law around this issue is complicated. The National Labor Relations Act (NLRA) allows employees to form unions, but are student-athletes to be considered employees under the NLRA? The Supreme Court and other courts have given some guidance on this issue, but it's not settled yet.

Historically, unions have allowed workers to negotiate with employers. This allows negotiations where workers lack the ability to negotiate on their own behalf effectively. Unions typically represent workers with relatively little individual power. Professionals have not been permitted to unionize. This is based on the theory that they are capable of representing their interests without unionizing. Theoretically, they can also negotiate the terms and conditions of their employment individually.

In recent years, however, there have been attempts to unionize college athletes. These attempts raise questions about the extent to which college athletes are employees. It also challenges notions about the purpose and utility of unionization. This article provides a brief overview of this legal issue.

Are Football Players Employees?

The idea that college athletes, such as football or basketball players, are employees has been debated at length. In 2015, football players at Northwestern University sought classification as employees. Northwestern University is a private university. These football players argued they were entitled to certain rights and obligations in a bid to organize a union. However, this was rejected by the National Labor Relations Board.

The National Labor Relations Board (NLRB) is a federal organization. This organization handles organizing labor unions. They unanimously declined to classify the student-athletes as employees. The board did not rule on the question of whether student-athletes are employees but declined to extend jurisdiction to cover college football. They cited negative consequences for doing so.

In 2021, the NLRB General Counsel Jennifer Abruzzo wrote a memo that said they could be seen as employees under federal law. There is more information about this landmark decision below. The question remains in the air.

Pro-Unionization Arguments

People who think college athletes should be able to form a union say it's about fairness. These athletes bring in a lot of money for academic institutions and athletic conferences, but often get little in return or don't get paid at all. A union would use collective bargaining to help athletes get better conditions, like health care or a share of the revenue. The National College Players Association supports this view and fights for athletes' rights.

Those who argue for unionization for college athletes claim it would provide them with several benefits. These benefits include:

• Procedural protections, including notice and a hearing before punishment
• Increased freedom to voice their opinions on social media without college interference
• New financial rights
• Health care benefits
• Pension plans

Advocates argue that school athletes meet the common law definition of employee. They use the federal labor law definition of employee to prove this. They state they perform services for another under a contract of hire and also point out they are subject to the other's control or right of control.

Catastrophic injuries and long-term health risks are points of concern for athletes. Football, in particular, has come under scrutiny for its potential issues. It has been linked to cognitive issues and depression. There are also other significant health conditions that can result from football.

At present, it can be very difficult to recover when a student-athlete is injured. The medical world continues to unravel the connections between injuries and student-athletes. These injuries can even persist or surface later in life. Unionization may provide protection and treatment for these injuries. It can also provide compensation for the suffering that can arise from participating in college sports.

Advocates also point out that college athletes don't share in the multi-billion dollar revenue received from their athletic participation. This revenue is generated from college sports. The enforced amateurism of college athletics prevents schools from adequately compensating athletes. This resulted in poverty and a lack of health or disability benefits for many college athletes.

Anti-Unionization Arguments

Others disagree. They say that college athletes are students first and not employees. They get scholarships and other perks that regular employees don't. Also, if athletes can unionize, it might cause issues in Division I sports. Schools would have to figure out how to treat these athletes as part of a bargaining unit, and that could be complicated.

Opponents of student-athletes unionization argue there is not an employer-employee relationship. They argue out that the business of higher education is the exchange of tuition money for education. They recognize that some student sports may generate large amounts of money, but also point out that many student sports tend not to generate profits. 

Allowing athletes who play profitable sports to unionize would logically permit others to join or create their own. These colleges would be forced to pay salaries and provide insurance for every sport equally. This result could be financially disastrous. Negotiating with multiple unions would also drain administrative resources.

Opponents say universities can handle this by addressing instances of clear unfairness and supporting student-athletes with grants and loans. Some argue that the students participating in the most profitable sports should be better represented. This can be accomplished by changing school rules to permit a special class of athletes. These athletes would be considered professional athletes. This employee status would be used rather than creating unions.

The NCAA Position

The National Collegiate Athletic Association (NCAA) is a nonprofit association. The NCAA regulates the athletic programs of many colleges and universities. The Association is made up of representatives from the schools and school presidents. The NCAA sees efforts by student-athletes to unionize as undermining the purpose of college.

The NCAA has long held the position that student-athletes are not employees. Instead, they are amateurs who participate in sports as an extension of their education. This view has kept them from supporting unionization efforts. They contend that such a move could lead to the misclassification of student-athletes as employees. However, the Biden administration has shown interest in addressing worker misclassification in general. The Biden administration has not commented on the NCAA's stance.

The organization states that it does not employ athletes. It also states students' participation in sports is voluntary. The NCAA claims students attend college for an education, not to be employed as athletes. Regardless of the NCAA's position, court rulings have already begun to appear. These rulings require the NCAA to allow universities to share revenue with their athletes.

In the case of NCAA v. Alston (2021), the Supreme Court said that NCAA could not limit certain benefits for students but did not say they were employees. Justice Brett Kavanaugh hinted that the NCAA might be breaking antitrust laws, but didn't say whether athletes could or should unionize. The NCAA wants to keep control over its member schools and not let athletes have the power of a union.

Moving Forward: The Landmark NLRB Memo

The memo by NLRB General Counsel Jennifer Abruzzo in 2021 was a landmark move in the debate over whether college athletes can unionize. Before this memo, the general belief was that athletes were mostly students, not employees.

However, Abruzzo stated in this memo that college athletes should be considered employees. Specifically, consideration as employees would give them the right to collective bargaining. Therefore, this would change the game for how athletes could negotiate. They could argue for better conditions, benefits, and perhaps even pay.

The memo came around the same time that new rules about Name, Image, and Likeness (NIL) started. NIL laws let athletes make money from their own personal brands. The decision to allow this was a major turning point for the NCAA. After years of pressure and debate, the NCAA announced the new NIL rules in 2021.

In 2021, New York took a big step in allowing college athletes in the state to unionize. This was groundbreaking. It challenged the traditional idea that student-athletes are just students and not employees. New York's decision opened the door for athletes to use collective bargaining to negotiate for things like better health care. They can also negotiate for more scholarships and even a share of the revenue they generate. It adds another aspect to the evolving rights of student-athletes, alongside the NCAA's new NIL rules and the Abruzzo memo.

Michigan is a state with a long history of union activity. This state, among others, is exploring the possibility of allowing student-athletes to unionize. No official decision has been made yet, but the state is closely watching developments like New York's landmark ruling and the NLRB memo. If Michigan were to follow New York's lead, it could set another precedent for other states to allow unionization among student-athletes. This could especially impact private colleges and universities in Michigan.

Get Legal Help With Your Employment Law Questions

If you're a college athlete and you have questions about your current rights, it's important to talk to a lawyer who knows about employment law. Laws can change, and new rulings may make the situation more confusing.

Student-athletes seeking compensation or benefits can consult with an experienced employment lawyer. A local attorney can provide advice about the relevant state laws and court decisions. They can also help determine whether joining unionization efforts is appropriate for you.