Why this matters
As college athletes score wins in court and the business of NCAA football grows, labor experts believe a college athlete union could come soon, and are directing their energy toward making that union as effective as possible.
For decades, the idea of college athletes forming a labor union has been a far-flung fantasy – article fodder for progressive sports columnists, an occasional piñata for conservative lawmakers, and about as imminent as cold fusion.
No longer. The National Collegiate Athletic Association’s longtime prohibition of athlete compensation is currently crumbling in courts and statehouses alike, and its concurrent refusal to recognize athletes as employees may be next. If that happens, college athletes would be able to form unions and engage in collective bargaining with their schools, conferences, and even the NCAA.
Such a scenario would forever alter the fundamentals of the industry, shifting power to athletes who historically have had little. “If you deem them employees, that will be a dramatic change in the way universities will have to treat their athletes,” says Irwin A. Kishner, the executive chairman of the law firm Herrick Feinstein LLP and co-chair of its Sports Law Group.
But what, exactly, would that look like? And what would have to happen for college sports to get to that point? What would athlete unions look like? And what sort of issues would they end up negotiating? Here’s a rough roadmap of how unions could evolve from idea to reality.
From Amateur Athletes to School Employees?
The NCAA’s version of amateurism has two pillars. One is that athletes can’t be paid to play. The other – which is essential for possible unionization – is that athletes can’t be employees of the schools whose uniforms they wear.
The first pillar is in trouble. Opposition to the NCAA has become one of the few causes to generate bipartisan agreement in both Congress and statehouses all over the country. Last summer, a series of laws signed by both Democratic and Republican governors prompted the NCAA to drop its prohibition on athletes earning money for the use of their name, image, and likenesses (NILs).
The association also has suffered a series of high-profile legal losses that have chipped away at restrictions on what schools can give their athletes. The 2014 case O’Bannon v. NCAA did away with prohibitions on paying athletes’ full cost of attendance, and 2021’s NCAA v. Alston nuked limits on athletes receiving education-related benefits. The latter case was ultimately resolved with a unanimous Supreme Court ruling that saw the Biden administration file an amicus brief against the NCAA and a conservative justice, Brett Kavanaugh, indicate that he was prepared to go much further in dismantling amateurism. Many legal experts anticipate a plaintiff will soon challenge the NCAA’s rules preventing outright pay-for-play.
Granting employee status to at least some college athletes may be on the horizon as well. In 2014 and 2015, a group of Northwestern University football players sought a judgment from the National Labor Relations Board that they were employees. They wanted the board to approve their petition, which would allow them to unionize. An NLRB regional office in Chicago sided with the players, ruling that the school’s considerable control over their schedules – and the immense value the players produced for their school – made them employees. But the NLRB is a labyrinthine organization, and its five-member national board declined to implement the regional ruling. Doing so in a fractured college sports landscape, the board said, “would not promote stability in labor relations.”
However, there’s reason to think that a similar case today would result in a more favorable outcome for athletes. At the end of 2021, NLRB general counsel Jennifer Abruzzo issued a memo declaring that some college athletes should be considered employees. While that memo has no binding effect, it could influence how board members rule in the future. In February, the National College Players Association, an advocacy group, filed charges with the NLRB arguing that schools and conferences are misclassifying their football players by not treating them as employees.
Ultimately, the NCPA wants the NLRB to do what it declined to do in the Northwestern case. “That’s exactly what's going on,” says Iciss Tillis, a former Duke University and Women’s National Basketball Association player who now practices at the law firm Hall Estill.
Should that happen in the NCPA case – or as the result of a future case brought by a different group of athletes – the effect on college athletes nationwide could vary. The classic legal elements of an “employee test” include whether an organization exacts substantial control over a worker’s professional schedule and workflow, whether the worker also works for other organizations, and whether the worker provides something of significant value to the employer. All of those sound a lot like they’d apply to Power Five conference football players, but would they apply to other athletes?
“I think the real answer is very dependent on the program and the particular school that we're talking about,” Kishner says. “Some of the major powerhouse universities, their athletes may be getting a lot closer to that employee definition than perhaps smaller programs.
“I’m not trying to demean anybody but your DIII swim team, where you’re participating on a collegiate level because it’s fun [or] it’s the only opportunity you have to do that, and you enjoy it: Are you now an employee too, because you’re bringing some honor onto it? So I think that there’s really degrees of what’s closer to an employee versus not.”
Other Hurdles to Unionization
The NCPA case is not, in and of itself, about unionization. But if the NLRB decides that a particular group of college athletes are school employees, those athletes then would have the right to form a union by signing union cards and voting in an election.
That process can be fraught. There is no federal guarantee of union rights for government workers, and a few states have made it difficult for those employees to unionize. Twenty-seven states have so-called “right to work” laws that bar unions from compelling everyone covered under their contracts to join the union. That deprives unions of both funding and leverage, and those disadvantages would be obstacles for any union of public school athletes in any state that is hostile toward organized labor. Unions can form despite those hurdles, but it takes dogged effort and a lot of time.
Factors specific to college sports also might make organizing more difficult. For one thing, college athletes are extremely busy – so much so that a protracted unionization effort might not fit into their schedules. Is there time to organize after classes, study halls, practices, weightlifting sessions, other workouts, team meetings, team meals, and extensive travel for their sports? Roster composition presents its own difficulties. College sports teams are high-turnover workplaces, with most careers lasting four years or less. The leaders of union drives tend to be leaders in the workplace itself, people who have been around for a while and can command their coworkers’ respect. The athletes serving as the glue of a union drive are likely to be juniors or seniors who could age out of the program by the time that drive has made progress.
While this is a significant problem for organizers, it can be addressed. One organizer who has helped build unions at restaurants with staff turnover rates of more than 100 percent per year told me a college athletes’ union could address the constant state of transition with a good pipeline of people who believe in the cause. Moreover, athletes would not be the first college students to unionize; graduate student unions have long existed at many public schools and have been allowed on private campuses since 2016. In some cases, they’ve made real gains.
Schools would likely throw up their own roadblocks. Coaches and athletic directors hold – and often exert – a lot of power over their players. Many of them would not want to deal with unionized athletes. Nor would their bosses, the school presidents. Sports teams have plenty of support staffers who are with athletes throughout their days, and likely would get wind of union drives, which work better when they are kept secret as they build strength. In the Northwestern case, the school responded to its athletes with an aggressive anti-union effort that featured both carrots and sticks. The school gave the players new iPads and took them on a bowling outing on the day of their first practice after the regional NLRB ruling went in their favor. Meanwhile, coaches and administrators warned that a football union could lead to sport cuts and that a union would be “a third party who may or may not have the team’s best interests in mind.”
It’s possible that things would unfold differently today, when college athlete rights are a hot-button issue and schools probably would be subject to major public relations problems if they adopted aggressive and overt union-busting tactics. I asked Tillis how her school would have responded to a union drive when she played at Duke in the 2000s. “Back then, people weren’t ready for it, and I don’t think it would’ve gone over well,” she says.
“Yes, because of the momentum, all the studies and stuff that are out there,” she says. “People understand that they can’t continue to justify not paying the athletes anything.”
University action aside, any group of college athletes is likely to contain a range of opinions on unions in general. A football team, for example, could have a mix of anti-union conservatives, pro-union liberals, and people who haven’t thought much about unions or politics in the first place. Organizers might address that divide by untethering a union drive from national political issues and focusing on specific areas where a union could win immediately relevant and tangible concessions from a school or conference – such as how many practices a team can hold in one week, and at what times in the day.
State of the Union(s)
What would a college athlete union look like? Would it just contain football players? Football and men’s basketball players in the Power Five conferences? All Division I athletes? All college athletes?
It’s hard to say, exactly. When employees plot out a union, they need to figure out exactly which workers fit into a bargaining unit that fights for a collective contract. Bargaining units are easy to take for granted after unions are established, but workers have to make those choices at the beginning, sometimes in negotiation with an employer or via a legal battle.
Starbucks workers have recently started to organize in specific stores. Amazon workers have tried to go warehouse by warehouse. Big national unions like the United Auto Workers cover thousands of employees across several states in a single bargaining unit. Professional sports leagues’ unions bargain with every player in the league in the same union, but even that’s the result of a choice. For instance, minor leaguers are not part of the MLB Players Association.
In college sports, the simplest path forward is for athletes at one school and on one team to form a bargaining unit. That’s what Northwestern football players sought when they asked the NLRB to recognize them as employees in hopes of having a union election. But it’s not the only possibility. The NCPA alleges that both the conferences and the NCAA act as joint employers of athletes alongside their schools, an argument that sets the stage for a union of every single NCAA athlete in a particular sport.
From labor’s perspective, bigger bargaining units are generally better because they mean more collective power. If every Football Bowl Subdivision player in the country organized together, their union would have a lot of leverage. At a certain point, however, bigness can be a weakness. The interests of a player at the University of Alabama could be extremely different than those of a player at San Jose State University, and a union might struggle to fight for both on every issue that matters to them. Organizing gets harder and more time consuming as a unit gets bigger, and greater size also invites more potential challenges for an employer – both of which could undermine the entire organizing effort. Schools might have their own preferences, and though the choice isn’t exactly theirs to make, they could influence the scope of the bargaining unit by negotiating with the union or via legal challenges. Some schools might want their conferences to negotiate with their players, and others might want to do it directly.
“I don’t think there’s one answer that fits all,” says Kishner, who has represented professional franchises on a range of legal matters. “It’s got to be fact specific. So if you are a big, super, mega-program, you may want to have the power to do whatever you want, because you’re a have versus a have-not, and you’ve got the money. Frankly, if you could spend more than 98% of the other schools, maybe you want to [do that]. I don't think there's one answer that fits that question. I think it just really comes to where you fit in that made-up hierarchy of how wealthy the school is, how prominent the program is, how much your benefactors are [helping], what your endowment is, and how much money you have to sort [of] play in this field.”
The Northwestern football players raised a sport-specific case about how much money football made for their school, including tens of millions of dollars annually in television revenue. Some lawyers believe revenue-sport athletes will have the most compelling case for employee status, which would form the basis for a union drive. But Tillis does not think it will end there. “I can't see that flying in the face of all the other athletes,” she says. “It’s gonna have to apply to everybody. I mean, it is going to have to apply to all of the sports, surely.”
Athletes at the Bargaining Table
Once unions arrive in college sports — whether sport by sport, school by school, conference by conference, national, or some sort of mix — their work will be cut out for them. Every union faces similar internal and external challenges, including keeping members unified on the road to a contract, making decisions about where to spend political capital, and bargaining with management. Negotiating a first contract makes everything harder, not just because of inexperience but also because there isn’t much of a template to follow. In an industry with no union history at all, college athletes will be starting from scratch. (From 2017 to 2020, I was on the organizing and bargaining committees for a new union at my old employer, Vox Media.)
That said, the initial college athlete unions likely will have an opportunity to be effective, and effective quickly, for their members. Nearly seven in 10 Americans currently approve of unions, the highest rate in decades. Much of the public believes that athletes should be paid. (That belief is much more prevalent among Democrats than Republicans). Meanwhile, college athletes have millions of devoted fans and are the essential workers in a wildly popular entertainment product. Add that up and an athlete union could have a strong wind of public support at its back, one that would place additional pressure on universities to make favorable deals. Moreover, the past few years have seen a breakthrough in college athletes using their own platforms and media savvy to influence their schools. Similar dynamics could play into a union’s hands.
Moreover, unions succeed when they stick together and struggle when they don’t. College athletes live together and spend their days together, often taking the same classes and hanging out even when they’re not playing, practicing, or training. Their coaches drill into them the importance of supporting their teammates. That cohesion could help an athlete union build power.
At the actual bargaining table, the many obvious and ongoing problems within college sports would give athlete unions plenty of things to fight for. They might ask for salaries, or more generous scholarships, or more time to complete their degrees, or less demanding practice and workout schedules, or more freedom to pursue majors that conflict with athletic demands.
“Healthcare is a big one,” Tillis says, recalling that her own experience as a basketball player at Duke left her with considerable medical bills after she left. “They basically gave me a walking, talking pre-existing injury, even though I didn’t have any surgeries or anything wrong with me. But anytime I would go to the doctor for an ache or pain, they would say it was pre-existing, and I couldn’t get coverage. This was something that was a definite problem. And it was something I was like, ‘Man, that’s really unfortunate that you’ve given your actual physical body to the schools, and when you’re done, your body will hurt and have issues. And that’s it.’”
Eventually, Kishner says, one issue makes college athlete unions all but inevitable: money. Television contracts for football and basketball are worth hundreds of millions of dollars. Receiving even a fraction of that would be a huge windfall for athletes. And they know it. “There’s a real economic incentive to try to organize,” he says. “It can and, frankly, in my opinion, will be done.
“I don’t know if it’s going to get to the point where DIII sailing is going to be – there may be a union for that, too. But as far as the timeline of that, that’s later. And the first place you’re going to see it is where there’s a lot of money to be divided. And that’s when the players’ union is going to say, ‘Wait a second. You don’t have a product unless I’m on the field or I’m on the court. And I want to share part of those revenues with you.’ And it’s not an unfair argument.”
Last summer, NCAA president Mark Emmert openly acknowledged it was “the right time” to answer the question “if we were going to build college sports again, and in 2020 instead of 1920, what would that look like?”
From education to athlete safety, labor laws to race and gender equity and beyond, this issue offers guidance for what that next iteration of American college sport ought to look like.