We Need a New Type of Collective Bargaining for College Athletes
Legislating a Hybrid Option
This is a free online newsletter for Jason Stahl, Executive Director of the College Football Players Association (CFBPA). If you are a past, present or future college football player, I ask that you consider becoming a member of the CFBPA. For a short YouTube introduction on the CFBPA, click here. Members of the general public who would like to support the CFBPA can donate at this link or volunteer at this link.
For reporters who wish to cover our proposal below, please click this link for the official press release.
In the college sports industry, there has been a raging debate about whether or not college athletes should be deemed employees of their school, conference and/or the NCAA. This debate has intensified over the last three years. Some advocates and current players, like those on the Dartmouth men’s basketball team, believe they should be. Most administrators and coaches, as well as many athletes in college athletics, disagree. This hardening of positions makes it appear that there will be trench warfare on this issue for years to come, both in the National Labor Relations (NLRB) administrative courts and in the federal courts. This means that the issue will also be subject to the political whims and personal opinions of whatever judges hear the cases.
We at the College Football Players Association (CFBPA) believe that current players should be able to choose to fight the battle for formal employment and collective bargaining if that is the battle they want to fight—as was the case with the Dartmouth men’s basketball players. But increasingly, as we talk with current athletes on multiple football programs around the country, there does not seem to be an appetite for these types of legal battles over formal employment, unionization and collective bargaining.
As such, at the CFBPA we have begun thinking about what a new model of collective bargaining might look like—a hybrid option that stops short of full employee classification for college athletes but that gives athletes numerous protections and the ability to collectively bargain with schools and/or conferences.
Legal scholars have explored just such an option and argue that a “special status” can be created for collective bargaining purposes in unique circumstances. Although a bit outdated given its publication in 2012, Michael H. LeRoy’s “An Invisible Union for An Invisible Labor Market” is still the best at fleshing out “a unique hybrid form of collective bargaining that draws from elements in the NLRA and state collective bargaining laws” that would be uniquely appropriate for college athletics. We would update LeRoy’s article to include collective bargaining rights beyond those he outlines, but we at the CFBPA believe that this is just the type of legislative action worth exploring.
Some college sports administrators are even starting to see the benefit of such a pathway. Just this past October, outgoing Notre Dame Athletic Director Jack Swarbrick specifically advocated for this type of solution. He argued, and other leaders in college sports seem to agree, that there must be a mechanism to bargain with athletes over a great many issues like compensation, benefits, hours, etc. He said that the concept would “mirror” a collective bargaining system seen in professional sports, but “without stripping student-athletes of their student status” and making them employees. Swarbrick correctly recognized what many administrators now do: that if you want to create a more sustainable future for college athletics, you need to negotiate with the players collectively to do so.
To get this type of “special status” for college athletes, one which stops short of employee status but gives extensive protections and collective bargaining rights, you would need Congress to enact new legislation. We at the CFBPA now believe that such legislation is worth exploring—particularly after current ongoing antitrust cases against the NCAA, the conferences and the schools are settled in a way that is fair for athletes.
Over the next several weeks, I and our Board of Directors will begin reaching out to industry stakeholders who may be interested in such a legislative pathway forward. We encourage those individuals to reach out to us as well. Additionally, we will be on Capitol Hill this coming week to take meetings with U.S. Senators and Representatives from both parties in order to discuss whether they might have interest in enacting the type of legislation I’m discussing here. Preliminary conversations suggest there might be.
Increasingly in the United States, Americans are engaged in work arrangements which don’t fit the traditional employer/employee model. From so-called “gig workers” driving for Uber to independent contractors building their own small businesses, many Americans have chosen new types of work lives. Within these new types of work lives, workers have nevertheless found new ways to collectively organize themselves. Sometimes, that has meant seeking recognition as formal employees. More often than not, though, it has meant seeking to keep their independent status while working to collectively better their working conditions in other ways.
This hybrid model makes sense for organizing college athletes. These Americans increasingly already think of themselves as independent brands/businesses as opposed to formal employees of anyone. Additionally, as Professor LeRoy has argued, “college athletics is so unique that there are good reasons for a carve-out” for a new type of collective bargaining. We agree and want to work with anyone who is interested in helping us build legislation which will do just that.