Another Legislative Push to Allow Student Athletes to Organize

Most of us tend to think of college athletics in terms of the mega-university football teams – Alabama, LSU, Notre Dame, etc. My college roommate recently retired from his position as a Director of Admissions at a major institution in the Midwest. When I asked him his thoughts about whether student athletes should be paid, I was expecting a defiant, fist-in-the-air “Hell no.” I was wrong. What I learned from someone on the inside is that these student athletes who are prepping for the professional ranks may be at a distinct disadvantage to the student who does not engage in extra-curricular activities because of the time commitment required of the athletes.

On the other side of the coin, a strong case can be made that an athletic scholarship valued between $20,000 to $50,000 per year with paid food, medical and travel expenses is more than adequate compensation for services rendered on the athletic field. The steady rise in tuition and cost-of-living expenses nationally lends further credence to this position. Nevertheless, the debate rages on. In May, new federal legislation was introduced which represents another attempt at paying student athletes through our nation’s labor laws.

Some institutions of higher education may have been relieved in 2015 when the National Labor Relations Board (NLRB) sacked a representation petition filed by student athletes at Northwestern University. There, the student athletes successfully convinced a regional NLRB office that they should be allowed to seek union representation so they could bargain collectively with the university over wages, terms and conditions of their ‘employment’ as athletes. The NLRB, however, unanimously dismissed that petition.

Since then, several attempts at legislating the issue of whether student athletes should be compensated for their commitment as athletes have been proffered without enactment: the Student-Athlete Equity Act (2019); the Fairness in Collegiate Athletics Act (2020); the Student Athlete Level Playing Field Act (2020); and the College Athletes Bill of Rights (2020). The U.S. Supreme Court’s decision in NCAA v. Alston is expected in July 2021. The Court heard arguments in March about whether the NCAA eligibility rules regarding compensation of student athletes violated federal antitrust laws. Still, since Northwestern University, there has been no federal legislative attempt to address these issues from the standpoint of the National Labor Relations Act (NLRA).

Fast-forward to May 2021, when Senators Bernie Sanders and Chris Murphy introduced a new bill to do what the NLRB in Northwestern University was unwilling to do, i.e., allow college athletes to unionize, making it possible for the students to band together to form unions within athletic conferences. The legislation is called the “College Athlete Right to Organize Act” (CAROA). CAROA, if enacted, would amend the NLRA with several key changes:

  • CAROA would amend the NLRA definition of “employer” which currently excludes public employees, to include “a public institution of higher education with respect to the employment of college athlete employees of the institution.” By this amendment, the NLRA would have jurisdiction over public colleges and universities, which fall under the labor law jurisdiction of their specific state labor laws.
  • The Bill would also amend the NLRA by expanding the definition of “employee” as follows: ‘‘Any individual who participates in an intercollegiate sport for an institution of higher education …. shall be considered an employee of the institution of higher education if—‘‘(A) receives any form of direct compensation, including grant-in-aid, from the institution of higher education; and (B) any terms or conditions of such compensation require participation in an intercollegiate sport.’’ Grant-in-aid includes scholarships under CAROA.

With these two definitional amendments, collegiate athletes would enjoy the benefits of the NLRA’s foundational right, which is the right to organize, putting them potentially at equal footing with those students who left college for the professional ranks. Some opponents to paying college athletes often draw the distinction between the students’ professional kin by pointing out that unions representing athletes in the pros are not team-specific, but rather represent players across the entire league composed of a multitude of teams. CAROA addresses this by proposing a multi-employer bargaining unit over the dozen or so teams that typically form an athletic conference, such as the BIG 10, the ACC and the SEC. Where this leaves universities that change their conference affiliation or those with no affiliation at all is unknown.

CAROA may not have the support in Congress to pass, but it is possible that passage is not the ultimate goal. Instead, CAROA may just be another rung in the ladder in the debate over the rights of college athletes. At some point in the future, those student athletes that we applaud for carrying our alma mater’s colors, may also carry a union card.