The NCAA inches closer every day to a tipping point of dramatic overhaul. Years of tectonic shifts around college sports could soon usher in an era its leaders and administrators have long tried to avoid: the treatment of college athletes as employees.
The next milestone could come Tuesday, when the Dartmouth men’s basketball team will vote on whether to form a union. The university is countering by fighting a National Labor Relations Board regional director’s finding that the basketball players are employees and entitled to union representation, but the effort is just one of several concurrent legal battles challenging the bedrock principle of amateurism that the NCAA has long prided itself on maintaining.
Meanwhile, in the past three months federal judges have blocked the NCAA from enforcing rules barring the use of NIL deals in recruiting and rules that require a multiple-time transfer to sit out for a year before competing. Other ongoing lawsuits take aim at the organization and schools themselves for violating federal antitrust law by restricting athlete compensation. An unfavorable ruling in any one of multiple courtrooms across the country could send the NCAA careening into its uncharted new world.
“With these cases that are addressing one rule at a time, it’s like pulling out one piece of that Jenga puzzle, and you don’t know how many pieces need to be pulled out before the whole thing collapses,” said Gabe Feldman, a sports law professor at Tulane. “Maybe no single one would bring down the NCAA as we know it. But if you lose multiple (cases), that might be enough to knock down the NCAA as we know it. Or you can look at the big antitrust cases — whether it’s the House case, the Carter case — and they’re just knocking the whole puzzle down.
“Either way, we end up with all the pieces on the ground. The question is whether it happens one piece at a time or all in one fell swoop.”
To understand how the many separate cases intersect, The Athletic spoke to nearly a dozen sports law experts over the past month. Every single one considers it an inevitability that college athletes will eventually be considered employees. The specific employment model for that will come down to several factors, but these experts believe it’s time to discuss the likely repercussions of that sea change. It’s now a matter of when, not if.
From a legal decision to a new business model
A victory for the Dartmouth players’ unionization efforts could motivate other private schools in conferences with more diverse membership than the all-private Ivy League to organize themselves. If the ongoing trial into an unfair labor practice charge in California confirms that USC, the Pac-12 and the NCAA should be considered joint employers of athletes, that could allow all athletes to unionize, regardless of the state they live in or type of school they attend. A third case currently in federal appeals court, Johnson v. NCAA, argues that college athletes should be treated like other student workers on campus and should be entitled to hourly wages at or around the minimum wage. Each outcome would pave the way for a different business model.
Some of the consequences will be simpler than others.
“The notion that you can’t be both a student and employee is false,” said Paul McDonald, lead attorney for the plaintiffs in Johnson v. NCAA. “All you’d have to do is take the NCAA timesheets that are already mandated by bylaws for countable athletically related activities. You take those and put them in the exact same system that you have for the kid selling hotdogs, or the kid working in the library or the kid who works at the bookstore.
“It’s as simple as that. … You would literally treat the athletes the same way you treat the other kids who work on campus.”
McDonald believes that the most complicated part of an employee-employer relationship is that athletes might need language in their employment contracts or at-will agreements that covers termination. McDonald would suggest adopting some of the language in current NCAA rules preventing schools from reducing or revoking scholarships based entirely on athletes’ athletic ability. But realistically, there’s no avoiding that if athletes don’t live up to the terms of their contract, they could be fined or fired, much like their counterparts in professional sports. Those who work around major college sports understand that coaches push players to transfer or retire already, but employment would crystallize schools’ ability to cut players — which may not sit well with all involved.
That would appear to be where unions come in, but it’s not that simple.
If the Dartmouth men’s basketball team votes to unionize and prevails despite the school’s challenges, players could collectively bargain with the university regarding wages, hours and any other terms or conditions of their employment.
The Dartmouth athletes’ vision for an Ivy League players union (either for just men’s basketball players or for athletes in all sports) that negotiates with the conference is not far-fetched. In professional sports, all of the owners get together and negotiate one agreement with their labor that covers the entire league. A similar multi-employer agreement could exist within an athletic conference, in theory.
If a conference or the NCAA were deemed a joint employer, as the unfair labor practice charge against USC, the Pac-12 and the NCAA contends, that decision would drastically broaden the scale of students permitted to unionize. The Northwestern football team’s 2015 bid to unionize was rejected by the NLRB because Northwestern was the only private school in the Big Ten, competing against public schools over which the NLRB does not have jurisdiction.
“A finding in either that a conference or the NCAA itself is an employer would have a dramatic impact because that could be a way that the NLRB and unions could kind of rope in public schools,” said Joshua D. Nadreau, partner and vice chair of the labor relations group at Fisher & Phillips LLP. “If they’re going to be setting rules and regulations about what these athletes can and can’t do, and how much practice time they can have and athletic activities and whatnot, the union would have a right under labor law to say, look, you’re setting the terms and conditions of my employment, you’re my joint employer.”
That kind of finding would allow all athletes to unionize, regardless of the state they live in or type of school they attend. From there, it would be up to the athletes to decide who wants to organize and how.
The speed of those movements will depend on several factors – state-by-state differences in labor law and the fact that most conferences have a mix of public and private institutions could complicate matters – but the successful unionization of one group of employees can motivate others. If only private-school athletes are allowed to organize, the NCAA would have a conundrum considering it has largely tried to treat all college athletes similarly.
But every public comment made by NCAA president Charlie Baker over the past year indicates that any model involving employment won’t be the organization’s first choice. And at the individual university level, voluntarily deeming athletes as employees might be too big an ask.
“A majority of the major revenue-generating institutions are public schools that happen, for the most part, to be in states that are not fairly progressive when it comes to labor law and union density,” Nadreau said. “The likelihood that schools in the SEC or Big 12 or the standard southern, Southeast, Midwest-type schools are going to willingly sign on to something that implicates, nominally, they’re employees is probably pretty small. But this is a legitimate question, and it’s also a question for our elected representatives.”
How would the unions work?
In professional sports, players unions often lean on the leadership of veterans who are secure in their standing. Will college sports, where the player pool completely turns over every 4-5 years, struggle to unionize without that support?
The recent unionization surge among graduate student employees points to a solution for organizers: Once a union is in place, it would negotiate multi-year contracts that will remain even after initial union leaders move on, and those recruited to join the union would be charged with knowing what’s in the contract and enforcing it.
Union members would also need to be willing to strike, as a last resort and as a negotiating weapon. That’s a weighty ask for college athletes who have a limited period of time to play and position themselves to advance to the pros. The closest thing to a strike that high-level college football has seen recently was in 2015, when a group of Missouri football players sat out of team activities and said they were willing to miss a game in support of a student’s hunger strike opposing the university’s handling of racist incidents on campus. (After school president Tim Wolfe resigned, the players played in the next weekend’s game.)
A key question further complicates the union’s capabilities: Who makes up the bargaining unit?
“We don’t know if the bargaining will take place in the equivalent of what is league-wide at the professional level,” Feldman said. “It could be team by team, or school by school, or sport by sport. But the broader you go, the more differences there might be in what the athletes are interested in. We don’t have much of an analogue for this in the sports world. We don’t have the star quarterback as part of the same bargaining unit as the backup fullback on the soccer team. … The collective bargaining dynamics are going to be a little unpredictable.”
“There are going to be a lot of growing pains,” said Irwin Kishner, the Co-Chair of the Sports Law Group at Herrick Feinstein.
With the NCAA facing the threat of paying billions of dollars in damages from antitrust lawsuits attacking its restrictions on pay-for-play arrangements, recognizing whatever unions form could be a way out of what appear to be unsympathetic courtrooms around the country.
“They have all these antitrust problems,” Nadreau said. “One way to avoid those is through the nonstatutory labor exemption to the antitrust laws, which are essentially saying if you bargain something with a union, you know, you can’t be liable for antitrust. That could resolve a lot of the NCAA litigation right now.”
Where would the money come from?
Two days before his team played in the national championship game, Michigan head coach Jim Harbaugh repeated his long-held opinion that those who make money off college athletes should take a pay cut and redirect that money to the players.
“We’re all robbing the same train here,” Harbaugh said. “Anyone who is profiting from the student-athletes right now — myself included — coaches, somewhere between 5 and 10 percent, take 5 to 10 percent less. That would go for any administrator, any coach, any conference, any university, NCAA — 5 to 10 percent less and maybe a 10 percent tax from the television stations, into one pot for the student-athletes. Maybe that’s a start, a way. …
“There are a lot of people profiting off the backs of student-athletes, and they do a lot of work to keep it from them.”
Harbaugh is not the only leader to acknowledge that once college athletes become employees, the money to pay them has to come from somewhere. But how freely will schools and athletic departments make that adjustment, and who might pay the most for it?
“The problem is that you have the adults who just simply want to keep paying themselves,” McDonald said. “We’ve been in a world where they’ve had free labor. They’re making the money, and they want to spend it somewhere. So, they spend it on coaches and on a new jumbotron that they don’t really need.”
Some experts said that athletic departments would need to cut some sports in order to pay athletes a salary. But decisions by Stanford, Clemson and several other power-conference schools to cut sports citing pandemic-related financial struggles were met with intense backlash from alums and fans, and many of the cuts were reversed. Programs have weaponized existential concerns to help drive collective donations in the NIL era, but it’s difficult to know whether fans will respond so passionately across the board and stave off department cuts.
“Making them employees is one of those ways of mandating appropriate compensation for athletes,” Kishner said. “The issue becomes if you are applying that to a university that has, let’s say, 18 separate programs … which do not necessitate the same hundreds or millions of dollars, or have the same level of interest, the same economics. If you have to pay the athletes salaries commensurate with that, it will likely cause universities to look at programs with a much sharper eye and say, ‘Well, I’m only going to fund five of these programs because I’m losing too much money.’”
“If you’re in a nonrevenue sport, you have to be realistic about it — that your sport could be on the chopping block,” said Michael LeRoy, a labor law expert at the University of Illinois.
No legal expert knows exactly how Title IX and other gender equity laws would affect an employment model, either. There won’t be certainty around that until it is challenged in court someday, which makes it hard to plan around. It’s not clear whether female athletes would be required to simply have the same opportunities — the same number of jobs — as their male counterparts, or if their pay would need to be comparable. But under the current policy, a school has to offer an equivalent number of opportunities for women as for men.
“This will have, at least in my view, a catastrophic effect on economically disadvantaged students going to college and women being able to go to the college of their choice if they’re hoping to get there on some type of athletic scholarship,” said Martin D. Edel, co-chair of the sports law practice at Goulson & Storrs.
Cutting sports is not the only option available to schools searching for the money to pay their athletes, but many other possibilities would require some outside entity to swoop into the market, be it private equity, professional leagues or the U.S. Olympic committee. The chances of that type of lifeline appear wishful at best.
And then there’s the plan to more clearly delineate which schools can and want to pay to play. In December, NCAA president Charlie Baker proposed the formation of a new subdivision within Division I, which universities can opt into if they agree to pay half of the athletes in their athletic department a minimum of $30,000 per year through a trust. The members of the new subdivision could create their own rules separate from the rest of Division I. Baker has said he wants this proposal (dubbed “Project D-I”) to kick-start discussions about a way forward for the NCAA amid its mounting legal challenges.
Last month, the Big Ten and the SEC — the two richest and most powerful conferences, who are also named defendants in some of the biggest lawsuits against the NCAA — formed a joint advisory group that they said would allow them to “take a leadership role in developing solutions for a sustainable future of college sports.” Administrators in other conferences believe that could be the first step toward those two leagues breaking away from the NCAA entirely. At the very least, their lawyers do spend a lot of time together, working to try to stave off losses (in House, for example) that could cost the entire enterprise billions. But if the power conferences struck out on their own, they would need to take measures to ensure they are not the target of the next wave of antitrust lawsuits.
The overall reaction to Baker’s proposal has been mixed. It would be costly, but so are the alternatives if Johnson or any of the plaintiffs in various ongoing federal antitrust lawsuits prevail. The Big Ten will negotiate its next media rights deal in 2030. Could it be cutting its athletes a share of that check at that time, as Harbaugh proposed? Multiple lawsuits have expressly taken aim at television revenue as a pool from which athletes should reap the financial benefits.
Of course, schools could also claw back some certainty, if they wanted, by way of employment contracts lasting multiple years and league rules limiting intraconference transfers. But it’s tempting to skip ahead to the extreme consequences. Will recruiting turn into de facto free agency, but without any form of salary cap? Would a union negotiate academic requirements on behalf of athletes, or would college sports fully abandon its ties to academics?
“It could be that there’s a small set of schools that want to embrace the employment model and enter into collective bargaining agreements with their athletes, potentially, in certain sports,” Feldman said. “Then, other schools could decide they want to move away from anything resembling an employment model, and they release a lot of control over their athletes and try to convince the courts or Congress that their athletes are not employees — and return to something closer to the system we’ve had for the last 80 years.”
The past few years have proven nothing is off the table — and nothing is for certain.
(Photo: Adam Gray / Getty Images)
