Last spring, Michael LeRoy made the decision.
LeRoy, an Illinois law professor who has published extensive work on labor policy, believes that the NCAA’s foray into NIL was an evolutionary step toward a working relationship between schools and athletes.
“Pandora’s Box,” he said then, “has been opened.”
About 18 months later, here we are. Athletes are closer than ever to becoming employees of their universities thanks to a memorandum released Wednesday by the National Labor Relations Board (NLRB). NLRB General Counsel Jennifer Abruzzo has found that some college athletes are employed under the National Labor Relations Act. And while his memo is only a guide to the NLRB field offices, it is a thunderous message: The agency’s lead attorney is inviting athletes from private universities to petition to unionize as employees.
But will they?
“I think it will happen,” says LeRoy. “I would anticipate that it would happen next year and probably sooner.”
Legal experts and sports administrators spoke with Illustrated Sports on Wednesday about what could eventually be a groundbreaking warning from the National Labor Relations Board (NLRB), the independent agency that enforces American labor law when it comes to collective bargaining. Six years after the same board denied Northwestern soccer players the right to unionize as employees, Abruzzo, a person appointed by the president, opened the door to a friendlier approach.
In light of the Supreme Court ruling in the Alston case and the implementation of NIL, she believes that college athletes are employees, should be treated as employees, and should enjoy employee rights, including organizing, organizing, collective bargaining and not be described as employees. “Student-athlete,” he wrote in his ad.
It’s yet another wave in this choppy ocean of change that is college athletics, one that many have speculated for years to come. In fact, last week during an athletic directors conference in Washington DC, Notre Dame athletic director Jack Swarbrick predicted this chapter.
“At some point in this school year, somewhere in the legal world or at the administrative level,” he told them, “a student-athlete will be declared an employee.”
It is no longer speculative.
The release of the memo was interestingly timed and perhaps not so coincidental. It fell a day before a House subcommittee holds a hearing on NIL.
The memo is the latest dramatic blow in this age of change in college sports. While its true impacts are unknown and likely distant, Wednesday’s news sparked a variety of reactions from both those in college sports and the legal field.
Panic. Fear. Exhaustion. And aggression.
Some administrators believe the solution lies in the nation’s capital, where a congressional bill could establish a legal path for schools to grant athletes collective bargaining rights and even income distribution provisions. Others suggest that higher education and college athletics may be headed for divorce.
“Everybody wants college football and basketball to be a part of higher education,” says one administrator. “I don’t know if we can sustain it.”
Mit Winter, a Kansas City-based sports attorney and 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 the universities and conferences and the NCAA want to participate in a system where they are bargaining collectively with athletes. It remains to be seen, ”he says. “There are different models that have been kicked in where the sports teams separate from the school and are their own independent entities.”
Viewing college athletes as employees would have a great impact on both the athletes themselves and their colleges. Athletes would be unwelcome in the world of federal taxes. And they may even risk being fired by their new employer, the school.
Schools could lose their Section 501 (3) c designation, which affects taxes on bond financing and charitable giving. Student fees and public support? Those too could disappear, experts say.
It is a complex issue. Like a freight train, says a sports director, it’s putting pressure on college sports, bundled with other changes that are rapidly altering the industry landscape for the better, some say; for the worse, say others.
“In the big picture, this notice adds another pressure point for change,” says Amy Perko, executive director of the Knight Commission. “College sports leaders know that change is coming. The question now is whether they want to keep the NLRB, state and federal legislators and the courts out by creating bold changes so college sports leaders are shaping their future. “
The NLRB memo is the latest shock from the NCAA’s crushing defeat to the Supreme Court in the Alston case. The ruling prompted the NCAA to scrap its plan to rule NIL and has sent the organization into a bust of change. By January, the association plans to rewrite its constitution to give more authority to conferences and schools. More than two dozen members of a constitution committee are scheduled to hold their first meeting in person on Friday in Chicago.
All of this comes amid negotiations between conference commissioners to expand the College Football Playoff, something Perko is opposed to.
“It is interesting that this announcement is happening as CFP’s expansion talks continue,” he says. “The CFP expansion talks continue when the same leaders have not discovered a way to address the bankrupt financial system that has led to this point. From our point of view, we would encourage the leaders of FBS, in particular, to address the structural challenges in the way they are approaching the expansion of the CFP ”.
Perko’s group has come up with a governance structure in which FBS leaves the NCAA and governs itself. The Knight Commission has also suggested that conferences direct how their schools spend revenue, demanding that more be spent in support of athletes rather than coach salaries and flashy facilities. It’s a better option than college athletes who consider themselves employees, he says.
But there’s a long way to go before the latter happens, says Gregg Clifton, an experienced sports and employment law attorney based in Arizona. First, public schools, and therefore public school athletes, are currently exempt from the jurisdiction of the National Labor Relations Act (NLRA). Public universities are not subject to the jurisdiction of the NLRB, but rather operate under the jurisdiction of state labor laws.
“By issuing this memorandum, the NLRB’s attorney general hopes to encourage private college athletes to take advantage of its recommendations. She advocates for athletes to go to the Labor Board and seek formal recognition through a possible litigation process and establish their status as employees under the NLRA, ”she says.
To seek unionization, an athlete would need to obtain a minimum of signatures of at least 30% of their team on authorization cards and file a petition with the Labor Board to begin the unionization process. A university could challenge the movement for several reasons.
However, if the Labor Board approves the athletes’ petition, the Labor Board would schedule and hold an election, needing only a simple majority of those athletes to vote in favor of being unionized to create an athletes union. The Labor Board must then certify the election results, something that never happened in 2015 in the case of Northwest soccer players because the Labor Board seized the votes cast and never formally counted the votes cast for or against. unionization.
However, things have changed.
“The weather is different now,” says Tom McMillen, president of Lead1, a group that represents FBS sports directors.
If you are successful in one school, unionization will invariably spread across the country and other private school athletes will follow your example. State legislators are likely to get involved as well, fearing their public school athletes will be at a disadvantage. New York and Maryland have already introduced collective bargaining bills in their state legislatures.
“It’s going to create more activity at the state level just like NIL did,” says McMillen. “What if New York passes a bill and Syracuse could pay its basketball and soccer players? What would Alabama do?
Winter says athletes at this point could start organizing, by team, school or conference, to make demands on working conditions if their regional labor board approves unionization. You don’t like meals on campus? Don’t like the way your show travels to games? You don’t like your coach’s practice schedule? Under the National Labor Relations Law, they would have the right to express such complaints, including to strike, as long as they are protected by the law of their company, in this case the university.
“Student athletes feel like their time has come,” says LeRoy. “The ball is now in his court.”
More college football coverage:
• College football playoff expansion is in jeopardy
• ACC Athletes Group Urges Congress to Pass National NIL Law
• The Alliance could host clashes throughout the season, commissioners say
• Sources: The Oversight Committee recommends the expansion of the 2022 class of firms
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.