"College Football: UCLA at USC. November 23, 2019, Los Angeles, CA" by Steve Cheng, CC BY 2.0
This piece was originally published as a two-part series by OnLabor. Power at Work has republished it with permission.
The Case for College Sports Bargaining
Federal judge Claudia Wilken’s June 6 settlement approval in the House v. NCAA antitrust lawsuit is not the culmination of college sports’ evolution from hypocritical amateurism to open professionalism. It’s a plot thickener.
Fearful of even greater liabilities if it lost at trial, the NCAA settled the House case and agreed to divert billions of dollars, mostly from TV broadcasting rights, into $20 million funds for each of the more than one thousand member schools to pay their athletes. Who gets paid, and how much, is up to each school.
But the deal creates more questions than it resolves. How will it bridge differences between the virtually professional “power” football and basketball conferences and the many more conferences and schools playing at lower levels who, as it turns out, must pay proportionally more of their revenues into the House funds? Between high-profile and high-income generating sports, again mostly football and basketball, and sports that are less remunerative but equally exciting for fans and demanding for athletes, like baseball, softball, hockey, wrestling, lacrosse, volleyball, swimming, gymnastics and others? Between men and women athletes under Title IX’s requirement for equal treatment?
What’s more, the House deal settles only a fraction of ongoing anti-monopoly lawsuits and potential liabilities. The NCAA is lobbying for congressional legislation giving them an anti-trust exemption. If they get it, they can do whatever they want – including halting compensation for athletes once the House settlement fund is paid out.
A legislated exemption would be a setback for athletes’ rights that will lead to continued uncertainty and turmoil. Antitrust suits might be avoided, but inventive plaintiffs’ lawyers will turn to wage and hour complaints, tort and breach of contract suits, anti-discrimination, workers’ comp, and other employment lawsuits.
It’s a Gordian Knot for college sports. But the way to cut through it is a tested framework for reconciling competing interests in other areas of economic and social life: collective bargaining.
Collective bargaining would give schools their prized exemption under longstanding antitrust law, which allows employers and unions to “fix” pay and conditions without running afoul of anti-monopoly strictures. This exemption would not be a special political favor letting universities impose conditions unilaterally and destroying athletes’ rights. Instead, it would encourage good-faith bargaining with players and their unions.
Justice Brett Kavanaugh, hardly a labor rights champion, suggested as much in his concurring opinion in NCAA v. Alston, the seminal Supreme Court decision that eventually led to the House settlement. To solve “difficult questions” surrounding potential antitrust liability, Kavanaugh said “colleges and student athletes could potentially engage in collective bargaining . . . to provide student athletes a fairer share of the revenues that they generate for their colleges.”
With collective bargaining, players in big-income sports can join their lesser-known schoolmates to negotiate terms and conditions for distributing the “pie” created by the new reality of college athletics. They could seek conference-wide “master agreements” on common issues across schools in the conference, and school-by-school talks on local concerns.
Players might even bargain with the NCAA itself as a joint employer alongside conferences and schools. A post-House twist lends itself to finding joint employer status: immediately following Judge Wilken’s approval, the NCAA announced creation of a new College Sports Commission to police revenue-sharing payouts to athletes under the settlement as well as payments to individual stars under name, image and likeness deals. Both are strong indicia of joint employer status (fans might say they’re a slam-dunk).
"Mike Walker and defender" by Ben Stanfield, CC BY-SA 2.0
We can already hear objections. Will players on high-profile teams seek a share greater than those in lesser sports? Will players on perennial winners seek more than perennial losers in the same conference? Will star players seek more than other starters, who will seek more than substitutes? Will men seek more than women? Will baseball players seek overtime pay for extra-inning games?
That’s the genius of collective bargaining. Instead of schools acting alone and angering more players and fans than they please, the people most involved on both sides, sports administrators and athletes, can tackle these issues through bargaining “with a sincere desire to reach an agreement,” the classic definition of good faith in labor relations.
In bargaining, each side must fulfill its obligation to explain their own proposals and listen closely to what the other side says to back up their proposals. Good faith also calls for maintaining an open mind and willingness to compromise to reach an agreement. It’s not only the law; it works positively for both sides.
The first step would involve college athletes forming unions to pursue bargaining with their schools. They couldn’t do it spontaneously. They’ll need help from experienced advocates like attorneys and economists who decades ago helped players form unions in the NFL, NBA, and major league baseball.
Then there were twelve NFL teams, eight NBA teams, and twenty MLB teams. Organizing athletes at hundreds of colleges around the country is a higher-order-of-magnitude challenge. It would have to be led by big, well-resourced unions that could assign staff at the needed scale. Perhaps professional athletes’ unions could form a consortium to organize college players, much like the MLBPA, representing 1200 players, organized more than 5,000 minor league baseball players in 2022 and achieved a first collective bargaining agreement in 2023.
Athletes’ unions would face threshold strategic questions: whether to organize on a team-by-team or school-wide basis, and whether to seek majority support in a single conference-wide bargaining unit. It’s a classic challenge going back to rivalry between the AFL and the CIO in the 1930s: organizing along “craft union” versus “industrial union” lines. For college sports, we think school-wide organizing makes more sense than myriad team fragments. College athletes share a core identity as competitors who have worked hard all their lives to get where they are, whether in football or fencing. They have enough in common to bargain together. Individual teams could address their concerns under school-wide agreements, and school-wide bargaining units could coalesce for conference-wide negotiations.
In private sector schools, administrations could voluntarily recognize players’ unions that demonstrate majority support, or the National Labor Relations Board could hold secret-ballot elections. In the public sector, similar mechanisms exist in those states that recognize collective bargaining rights. In states that don’t allow public sector bargaining, players could still exercise First Amendment rights of association to join their counterparts and campaign publicly for equal treatment.
Once they form unions, athletes would first have to bargain among themselves to formulate proposals. They have to reconcile competing interests just as employees in multi-faceted bargaining units in other workplaces, like assembly-line workers and skilled tradespersons in factories, or clerical and high-tech staff in offices.
All unions have to promote debate and dialogue within their ranks to reach consensus bargaining positions. Issues are hashed out with membership surveys and in meetings where workers talk and listen to each other and make compromises. In the process, workers develop a sense of community, agency, and “voice” vital for a democratic process.
Athletic directors and coaches will have their own proposals, too, reflecting a similar process of internal bargaining and compromise. Not least between high-profile football and basketball coaches, and coaches of the more plentiful but lesser-known sports teams.
What Happens at the Bargaining Table?
"Over the Rose Bowl, Pasadena, CA USA 0039" by Ted Eytan, CC BY-SA 2.0
Players’ unions and athletic administrators can first negotiate a wage “floor” with minimum pay scales providing basic income for all athletes. They might also add a bonus plan for teams that win conference championships or post-season competitions. They can agree on year-to-year longevity increases to blunt the chaotic transfer portal and create more attachment by athletes to their schools and their fellow students. At the same time, they can mimic professional sports by allowing individual star athletes to negotiate for name, image, and likeness compensation over and above salary scales in the basic union contract. They can also create a union role to ensure due process and other safeguards for players’ NIL pay arrangements.
Salary scales, pay progression and NIL deals are big subjects, but they are just starters. Other classic bargaining issues would also be on the table. They include hours of work, given the time demands on athletes; health and safety, especially in hard-contact sports with long-term health implications; medical insurance, not only while playing but also when former players live with permanent injuries; compensation and treatment of temporarily injured players; and more.
Non-discrimination is also a bedrock bargaining subject. Unions and universities would be negotiating in light of Title IX, Title VII, and state-level anti-discrimination laws, but also in light of moves by the federal and some state governments to undermine these protections. They could simply incorporate legal requirements into their collective bargaining agreement and sort things out through arbitrations and lawsuits. But we hope that players’ unions would seek contractual provisions to uphold equality between men’s and women’s teams and men and women players.
Institutional interests on each side are also important subjects of bargaining. Athletic directors will certainly insist on traditional decision-making powers such as who makes the team and who gets cut, who starts and who subs, who plays which positions, the game plan and play calling, and so on. Management will doubtless seek no-strike guarantees while the contract is in effect, and players would likely agree – they are athletes who want to play, after all – typically combined with binding arbitration for unresolved grievances.
For their part, unions will seek rights and protections for players elected to union leadership positions to carry out their union functions, and union representatives’ access to facilities to meet with players. Also important are union security clauses providing for dues payments from union members and agency fee payments from players who choose not to be members (under U.S. law, no one can be forced to join a union, but to address the “free-rider” problem, a collective bargaining agreement in the private sector can require agency fees from represented non-members).
Further complications arise involving distinctions between private and public universities, sometimes in the same athletic conference, and whether they are located in “agency shop” states that allow mandatory agency fee payments by non-union members or in “right-to-work” states that prohibit agency fee clauses. Also relevant is the Supreme Court’s Janusdecision, which allows individual public employees in any state to opt out of agency fee obligations. These intricacies are too plentiful to address further here, but they are not insuperable problems. Unions and universities have long dealt with them for their already established campus bargaining units for blue collar workers, clerical and technical workers, graduate student workers, and others.
Continuity will be an important institutional challenge on the union side, as athletes come and go over time spans as short as a basketball player’s “one and done” year and up to six years under extended eligibility rules. Unions should work to include freshmen and sophomores in leadership and in bargaining, who can pass the baton later. Full-time external union representatives, as with staffers of professional sports unions, can stay with the union for sustained periods to provide stability and institutional knowledge.
"March Madness" by Todd Wickersty, CC BY-SA 2.0
The Ivy League might be the best test for collective bargaining. All are private sector entities subject to NLRA and NLRB jurisdiction and located in Northeast states that do not block agency fee contract clauses. Their athletic departments are similar in size and budgets, and they compete on a level playing field across multiple sports. Moreover, collective dialogue already happens in Ivy sports. Late last year, athletic directors and administrations accepted a proposal from the Student-Athlete Advisory Committee, made up of 17 athletes in 12 sports from all 8 institutions, to allow their league football winner to play in the post-season FCS championship. The agreement ended a 70-year prohibition on post-season football play.
A league-wide basic bargaining agreement could protect competitive balance, while coaches and players at individual schools might set other priorities in supplemental agreements. And agreements can let the occasional Ivy League superstar – more likely in gymnastics, hockey, lacrosse or wrestling than in football or basketball – negotiate individually for NIL compensation.
We think university administrations should get ahead of the curve and embrace collective bargaining as the right framework for college sports. They could voluntarily recognize unions where players show majority support, or forego anti-union campaigning and let an NLRB election decide majority status. This way, they can avoid reliving the years of turmoil that accompanied resistance to union organizing among now established and accepted campus bargaining groups. They can also avoid being put on a yo-yo by alternating Democratic and Republican majorities at the National Labor Relations Board and their shifting decisions on employment status and coverage under the NLRA. And as noted at the outset, universities can avoid the potentially devastating consequences of ongoing and future antitrust lawsuits, since collective bargaining gives them their long-sought exemption from antitrust law.
Some points in closing. First, we know our argument can be seen as just a pie-in-the-sky thought experiment, subject to pooh-poohing by hard-headed realists who can always say “what about this?” and “what about that?” We don’t pretend to have all the answers. Nor should we – it’s for the athletes and administrators and coaches to find their answers. We would only note that there was a historical point in every workplace and industry when unions and collective bargaining were seen as pie-in-the-sky, never-gonna-happen fantasies. And then they happened.
Second, we know it is asking a lot of university administrations and athletic department managers to move to a collective bargaining system. For many of them accustomed to controlling players in an unequal power relationship, it will take a profound philosophical shift to sit across a bargaining table from players as equals. But this is the history of labor relations in professional sports. The parties have learned to work together, the value of franchises has multiplied exponentially, and owners, managers, and coaches still make key operational decisions. Neither side gets everything it wants, but the compromise resulting from good-faith bargaining is a better outcome than either side getting everything it wants.
Finally, we believe in an even deeper justification for the collective bargaining solution: it’s a fundamental human right. All workers are entitled to a say in the terms and conditions of their work. College athletes, too, are entitled to a genuine voice at work, found in the right to organize and bargain collectively through representatives of their own choosing under U.S. law and international human rights standards.
