Congressional Democrats have pushed forward another front in the movement to reshape college athletics. A bill introduced on May 27 would make college athletes employees of their respective schools with the right to form unions and bargain collectively.
The collegiate athletic system is under attack from three sides. Several suits, most notably O’Bannon v. NCAA and NCAA v. Alston, have raised antitrust challenges against rules of the National Collegiate Athletic Association (“NCAA”), college sports’ governing body, that limit the compensation received by student athletes. Relatedly, NCAA rules have long prohibited student athletes from being paid by third parties for the use of their names, images, and likenesses (“NIL”). To that end, several states have already passed legislation that will grant NIL rights to college athletes, while Congress has considered various federal bills on the matter.
Much less progress has been made with efforts to classify college athletes as employees. In 2014, football players at Northwestern University filed a petition for a union election with the National Labor Relations Board. The Board, without deciding whether the football players were employees, declined to exercise jurisdiction in the case, finding that asserting jurisdiction would upset stability in labor relations. Despite the open question left by Northwestern and a Board decision two years later finding that students who perform services at a university in connection with their studies are statutory employees, no further challenges on behalf of college athletes have been pressed.
The College Athlete Right to Organize Act would resolve the ambiguity left by the Board, directly amending the National Labor Relations Act (“NLRA”) to define any student athlete compensated by their school for athletic ability as an employee of their respective college. Notably, the classification applies to all athletes, whether at public or private institutions, and the bill explicitly grants to the Board jurisdiction over all institutions of higher education in the context of intercollegiate sports in relation to collective bargaining, representation matters, and labor disputes. This extension of the NLRA would potentially displace some state labor laws, which govern employees at public colleges and universities.
The proposed legislation also directs the Board to recognize colleges within an athletic conference as part of a multiemployer bargaining unit; prohibits schools from enforcing conditions on scholarship agreements that would waive rights granted under the act; and preserves the current federal financial aid status of college athletes as well as the tax status and treatment of compensation they receive.
In response to the bill, which is supported by the AFL-CIO, United Steelworkers, and Advancement of Blacks in Sports, the NCAA released a statement condemning the legislation. The organization said that it would “continue to work with members of Congress to focus on issues that align with our priorities. But turning student-athletes into union employees is not the answer.” Senator Chris Murphy, one of the bill’s sponsors, said that having the right to unionize “will help athletes get the pay and protections they deserve and forces the NCAA to treat them as equals rather than second-class citizens.”
While the bill is unlikely to pass, the legislation represents the evolving public attitudes over student athletes and their relationship with their universities.