In January, during an interview on the podcast Pardon My Take, Kirk Herbstreit, ESPN’s lead college football analyst, said the quiet part out loud.
“I say we make the players employees,” he told PMT. “I say we’re on a path to unionization. … That’s where we’re headed.”
A month later, the movement to make college athletes employees of their universities took another significant step.
On Tuesday, the National College Players Association filed unfair labor practice charges with the National Labor Relations Board (NLRB) against the NCAA office, the Pac-12 Conference and California schools USC and UCLA as single and joint employers of FBS football players and Division I men’s and women’s basketball players. The goal is to affirm employee status for D-I basketball players and FBS football players.
Aaron M. Sprecher/AP
It is the latest chapter of an athlete rights movement that has generated sweeping changes to archaic NCAA policies governing athlete compensation and transfer policies. Buoyed by the Supreme Court’s ruling in the NCAA v. Alston antitrust lawsuit in June, the country’s sentiment has started to swing in the favor of players over those in charge—coaches, school administrators and conference officials.
In fact, the NCPA’s stroke comes only after new NLRB general counsel Jennifer Abruzzo encouraged such a move. In a September memo, she deemed college athletes employees under the National Labor Relations Act, a thundering message from the agency’s lead lawyer that invited athletes and athlete advocates to bring forth petitions to unionize. The NLRB is the independent agency that enforces U.S. labor law as it relates to collective bargaining.
Six years after the same board denied Northwestern football players the right to unionize as employees, Abruzzo, a Joe Biden presidential appointee, cracked open a door that NCPA executive director Ramogi Huma hopes to swing open.
“By definition, college athletes are employees under labor law,” Huma says. “They are skilled workers in their sport and are paid scholarships. They deserve the rights afforded to them under labor laws like every other American.”
The NCPA is the second entity to file a charge with the NLRB since Abruzzo’s memo. Michael Hsu, an athlete advocate based in Minnesota who started a players association for both college football and basketball players, submitted a charge of unfair labor practices against the NCAA in November. Hsu says he is awaiting a ruling from the NLRB.
The process is a long and winding one. Most experts do not expect an outcome until at least 18 months after a charge is filed. The NLRB must investigate the filing, requesting information from the charged parties and potentially issuing subpoenas (it has subpoena power). If a complaint is issued, a hearing is scheduled in front of an administrative law judge who ultimately decides athletes’ employment status.
“I look at this as the first shot of a basketball game,” says Hsu. “Did it go in? Is it an airball? Did it hit the rim? I’m prepared to take more shots.”
The NCPA’s filing charged both a private school (USC) and public school (UCLA)—a strategic move. The NLRB has jurisdiction over only private employers, but Abruzzo has argued that conferences and the NCAA are joint employers of athletes and that the NLRB’s jurisdiction would thus expand to all schools, says Gabe Feldman, a sports law professor at Tulane.
“If we win, it will be applicable across the nation,” Huma says.
The athlete-employee issue, the latest ripple in the NCAA’s ocean of change, has been long speculated. In September, at a convention of athletic directors in Washington, D.C., Notre Dame AD Jack Swarbrick told a group, “Sometime in this school year, somewhere in the legal world or administrative level, a student-athlete will be declared an employee.”
Not all believe it should happen. In an interview with a Portland radio station last month, Pac-12 commissioner George Kliavkoff disagreed that college athletes should be employees.
“They are students first and athletes second. That is non-negotiable for me,” he said. “We get to a place where we talk about professional athletes and it blows up the whole model. Let’s take it to the natural conclusion. Talking about professional athletes, then we have a draft. You’re telling a kid where to go to college. If they are an employee, do I get the right to fire them?
“The natural conclusion of deeming student-athletes employees is very dangerous. It would also mean less of an investment in other sports that are not profit-generating.”
The Supreme Court’s Alston ruling, the implementation of name, image and likeness (NIL), and the NCAA’s restructuring has produced an ideal time—a perfect storm, some say—for athletes to be deemed employees. There are several avenues in which that could happen beyond a decision from the NLRB, including congressional or state legislation and a court’s ruling.
“Every day the status quo seems to be more unsustainable,” Feldman says. “Some significant change is likely to happen in the near future. There is consensus: Athletes should be given more. The question: How do we do that while protecting the foundation of college sports?”
Already, the wheels are in motion. Just last week, the Third Circuit announced that it will consider whether athletes are employees due minimum wage and overtime in a potential landmark collective action suit out of Pennsylvania. In Congress, Sens. Chris Murphy (D-Conn.) and Bernie Sanders (D-Vt.) introduced the College Athlete Right to Organize Act.
At the state level, legislation has been introduced to either block athletes from becoming employers of their schools or to grant them that right.
“What the NCPA is doing is trying to make it more fair and give dignity and respect to these athletes,” says U.S. Rep. Tony Cardenas (D-Calif.). “It won’t fix the problem as a whole, but like pro sports … they have minimums. If you’re an athlete, you’re at least going to make X amount. Maybe the star on the team can negotiate a multi-million dollar contract. But we will raise the floor [amount].”
How the majority of Division I athletes themselves feel is rather unclear. No athlete or group of athletes have filed a charge with the NLRB. Hsu says his attempts to convince athletes to file charges came up empty.
In a statement expected soon from the NCPA, Iowa men's basketball star Jordan Bohannon says, “The NCAA invented the term ‘student-athlete’ to deny us college athletes protections under labor laws. That deception harms us physically, academically and economically. … The truth is that like all FBS football and Division I basketball players, I am an employee of my school, conference and the NCAA.”
However, according to NCAA president Mark Emmert, not all athletes agree. In writing its new constitution, the NCAA found strong pushback among athlete groups in abolishing the term “student-athlete,” Emmert said. Athletes were “downright insulted” over the proposed change, he added.
Many administrators balk at the idea of turning college athletes into employees, but several know what’s coming, says Tom McMillen, the president of Lead1, a D.C.-based organization that represents the FBS athletic directors.
“Quite frankly, this could happen very quickly,” McMillen says. “Right now about 90% of my schools would resist, but you could have a whole division of college sports and run it like a business.”
Some administrators believe the solution lies in the nation’s capital, where a Congressional bill could lay a legal path for schools to provide athletes collective bargaining rights and even revenue-sharing provisions. Others suggest that, maybe, higher education and college athletics are headed for divorce.
“Everybody wants college football and basketball to be part of higher education,” one administrator told Sports Illustrated in the fall. “I don’t know if we can sustain it.”
Mit Winter, a sports attorney based in Kansas City and himself a former college basketball player at William & Mary, believes the future of college sports could possibly be separate from their own schools.
“I don’t know if universities and conferences and the NCAA want to participate in a system where they are collectively bargaining with the athletes. It remains to be seen,” he said in an interview in October. “There are different models that have been kicked around where athletic teams are spun off from the school and are their own standalone entities.”
Deeming college athletes as employees would have wide ranging impacts on both the athletes themselves and their universities. Athletes would be rudely welcomed to the world of federal taxation. And they may even be at risk of termination by their new employer—the school.
Schools could lose their Section 501(c)(3) designation, which impacts taxation on bond financing and charitable gifts. Student fees and public support? Those might disappear too, experts say.
It is a complex issue. Like a freight train, says one athletic director, it is bearing down on college sports, grouped with other changes that are quickly altering the landscape of the industry—for better, some say; for worse, say others.
“Employee status is not a guarantee of better rights, but it would certainly empower the athletes to negotiate for better rights,” Feldman contends. “Whatever the path is, there are downsides to the path. I don’t think any solution is necessarily going to be perfect. For every gain made for one athlete, it may lead to less from another athlete.”
