Player’s Association vs. Union

What’s the Difference and Why it Matters

The following newsletter is the third in a series of four newsletters which, taken together, attempt to define my vision for a College Football Players Association (CFBPA). The first, on NIL rights, can be read here. The second, on the Alston Supreme Court case can be read here. The four “vision newsletters,” when complete, are meant to be read together along with the newsletter from this past February which announced my candidacy to lead a CFBPA.

I originally intended to write only three “vision newsletters” outlining how college football players could establish a CFBPA and why a CFBPA matters. However, as sometimes happens, real-world events have intervened and led me to recognize that I need to expand this to four newsletters. The real-world event in this case is the introduction of a new bill out of the U.S. Congress entitled the “College Athlete Right to Organize Act,” or CARO.

CARO seeks to fundamentally reshape college athletics as we know it in the United States. It first and foremost seeks to explicitly classify nearly all “student athletes” as “college athlete employees” given that they “exhibit the markers of employment as established under the common law definition of the term ‘employee.’” Moreover, once reclassified as employees, the bill, should it become law, would allow college athletes to form unions. As per the language of the bill, they would “be able to form collective bargaining units across institutions of higher education” whether or not those institutions were public or private. Those unions, when formed, would then be empowered to bargain for wages, benefits and workplace rules just as any other union in the Unities States is empowered to do.

My initial reaction to CARO is pretty similar to Matt Brown’s at his Extra Points newsletter. There, Brown argues that the bill is a welcome development in that it expands the existing parameters of debate regarding reform in college athletics. Even if CARO never actually becomes law (a distinct possibility) it is positive because it moves the discussion of reform in college athletics beyond NIL rights. However, in a subsequent newsletter, Brown wonders whether college athletes would actually unionize should CARO ever become law. Brown cites the simple fact that organizing a union “is really hard” especially with a transient and young workforce. Given these facts, Brown argues that if we want to “push the envelope of college athletics reform in different directions, I don’t know if the best tool to push is collective bargaining.”

I tend to agree with all of this but come to my position from a different vantage point than Brown. Over the past two decades, when I was a graduate student and professor at the University of Minnesota, I taught thousands of undergraduates in a variety of courses, many of which focused on the past, present and future of labor and work in the United States. Additionally, I’ve also been a labor organizer for two national unions both in higher education settings. These two dual, intertwined experiences taught me two truths. First, as Brown suggests, organizing a union—especially in a transient higher education setting—is extraordinarily hard. Both campaigns I worked on—the first as a graduate student and the second as a faculty member—went down to defeat. Second, undergraduates today have very little knowledge regarding unions—both what they are and how they are supposed to work. Given that only 1 in 10 workers in the United States is now unionized, it is not hard to see why this is the case. Young adults simply have not grown up with any meaningful engagement with unions or unionization themselves or within their families.

Given these cold, hard facts, I agree with Brown that formal unionization and collective bargaining by college athletes would be very hard and thus should not be our focus in the here and now. I very much welcome CARO in that it helps move our movement beyond a myopic focus on NIL rights. But, it is very hard for me to envision a world where CARO passes; the needed education is done regarding unions and unionization; and then college athletes vote to unionize en masse. This doesn’t even begin to touch on the unique problems within college athletics that would make organizing a union extraordinarily difficult. CARO seems to suggest that college athletes will organize their bargaining units within conferences and across all sports—whether those sports are male or female. This means massive bargaining units which are widespread geographically and which have widely divergent interests within the bargaining units. This, quite simply, sounds like an organizer’s nightmare.

At this point, someone who has been reading this newsletter for a while is probably asking, “but wait, aren’t you trying to form a union?” The answer is that I am not. I’m trying to organize and lead a fraternal college football player’s association with individual chapters on any college campus that has a football program and where players within that program seek to open a chapter. Taken together, these individual chapters will encompass a College Football Players Association. The CFBPA will be an organization which will advocate for the rights of college football players nationwide and at individual schools. Beyond this advocacy work, it will be dedicated to their health, safety and welfare given that the NCAA has utterly failed in doing so. I’ll lay out my complete vision for the CFBPA in the forthcoming fourth installment of my “vision newsletters.” But for now, I think you can see why this vision differs sharply from the world envisioned by CARO in the previous paragraph.

However, I want everyone who is in favor of CARO to recognize how what I’m proposing could possibly bring about enactment of the legislation in the future if this is what college athletes desire. I stress this last part, because right now, I’m not sure that we actually know that college athletes want to be reclassified as employees and then, if they are, that they would want to be unionized.

Why do we not know this? Because college athletes nationwide are not organized in any meaningful sense of the word. As I’ve argued in this newsletter before, the college sports reform movement has a lot of top-down activism from lawyers, academics, legislators and nonprofits. What it doesn’t have is a bottom-up movement of college athletes who are organized. If you look at Twitter, or good journalism like this piece from Nathan Kalman-Lamb, Derek Silva and Johanna Mells, you’ll be able to gauge that there is pro-union sentiment among college athletes. But, they need to be better organized as a movement so we can find out if employee classification and unionization is what they actually desire. We need to be sure as lawyers, academics, legislators and nonprofits that we’re not speaking for college athletes but rather allowing them to speak for themselves. The only way this can happen is if they are organized.

This is where a CFBPA can be the start that we need to organize athletes en masse and let them set the agenda for what they want heading into the future. Maybe what we find out is that, once organized into a CFBPA, college football players want to push for the passage of CARO, thus bringing about employee status for them and other college athletes. Maybe then they say that they want a CFBPA to become a formal union that expands to encompass all college athletes. If this is what they say, then this is what will be done. However, if this isn’t what they decide they want to do, we have to acknowledge this as well and still realize just how much can be done through a fraternal player’s association like the CFBPA. I’ll outline the many things we can do right now through such an organization in my final forthcoming vision newsletter. Until then, if you want to help in my work to build a CFBPA, I hope you’ll consider doing so in one of the many ways I outline at this link.