IS UNIONIZATION NEXT FOR COLLEGE ATHLETES?

Author: Noah Banks, Associate Editor

The world of intercollegiate athletics has recently experienced dramatic changes. College athletes have gone from living in a world where receiving any dollar amount would be considered a violation, to being able to sign six or even seven figure deals for endorsements based on the athlete’s own name, image, and likeness (NIL).[i] While the new landscape of college sports in a modern NIL world is evolving daily, many have begun to ask: what is the next step for college athletes?

The idea of unionizing is one that is often mentioned when discussing the future of college sports, but there are many legal issues that arise as a result. The right to unionize, or collectively bargain, is a right that is given to all employees via the National Labor Relations Act (NLRA).[ii]  Whether college athletes should be deemed university employees’ is not a new debate. While such a debate sparks tension on both sides of the political aisle, it is one that may be answered by the courts very soon.

There has been a recent surge in cases of multiple state systems asking courts to resolve this issue for purposes of unionization.[iii] If athletes are deemed employees, the athletes will be stripped of their “student” status pursuant to the NLRA, and would be able to enforce a list of rights and protections that the NLRA sets out for any employer/employee relationship.[iv] This very reason is exactly why universities are opposed to the idea of deeming athletes employees and have even urged Congress to act.[v] Michael Leroy, an Illinois Labor Law professor, sees the potential fallout issues with deeming college athletes as employees and describes a legal “carveout” as a possible solution.[vi] Essentially, Leroy calls for Congress to step in and create specific legislation to allow college athletes to collectively bargain without deeming them employees or stripping them of their student status. This view effectively creates a legal exception to modern labor law for college athletics.[vii]

Assuming college athletes are given the right to unionize, the next issue that may arise is how collective bargaining could be maintained in a consistent way that also promotes competition in the given market in accordance with federal antitrust law. Federal antitrust law was created for the purpose of promoting vigorous competition and protecting consumers from anticompetitive mergers and business practices.[viii] Therefore, if one singular entity (such as the NCAA) was tasked with managing the collective bargaining of all college athletes, there would be very serious antitrust concerns due to the lack of competition within the market for the athletes.

To address this issue, many legal scholars have attempted to draw parallels between college athletes and current professional sports leagues, which allow collective bargaining agreements in each respective sport between the teams’ owners, its’ players, and the respective player associations (unions).[ix] In the college landscape, similar agreements could be possible if each major conference were to set up its own players association and allows its’ players to collectively bargain with the conference through such a union on behalf of the school.

While the future of college athletics as we know it truly is a mystery, it is certain that change is coming. Absent interventional legislation from Congress in the interim, the pending state court cases which have asked courts to decide the status of college athletes as possible employees will be the first of many dominos to fall. Regardless of what the court decides, the outcomes of those cases will provide a structure and a path for the future governance of all college athletics.

[i] Cole Claybourn, Name, Image, Likeness: What College Athletes Should Know About NCAA Rules, U.S. News  (Feb. 08, 2024, 1:53 PM), https://www.usnews.com/education/best-colleges/articles/name-image-likeness-what-college-athletes-should-know-about-ncaa-rules  

[ii] National Labor Relations (Act), 29 U.S.C. §§ 151-69 (2000).

[iii] Claybourn, supra note i.

[iv] Ross Dellenger, Would Collective Bargaining Solve College Sports’ NIL Issues?, yahoo! sports (Oct. 17, 2023), https://sports.yahoo.com/would-collective-bargaining-solve-college-sports-nil-issues-notre-dame-ad-youve-got-to-create-something-new-214936402.html.

[v] Id.

[vi]  Michael H. LeRoy, An Invisible Union for an Invisible Labor Market: College Football and the Union Substitution Effect, 2012 Wis. L. Rev. 1077.

[vii] Id.

[viii] The Antitrust Laws, Federal Trade Commission (June 11, 2013), https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws.

[ix] Rohith A. Parasuraman, Note, Unionizing NCAA Division I Athletics: A Viable Solution?, 57 duke l.j. 727, 746 (2007).