One of the biggest questions hanging over the heads of every college athletics department, athlete, and fan, is whether college student-athletes are going to become employees of the universities or remain amateurs. Recently, the University of Tennessee approved the creation of a non-profit foundation to directly pay student-athletes if the rules change to allow for such payments.[1] 11 of 14 SEC schools have similar foundation plans.[2] Athletic departments are starting to prepare for a change in the status quo, whether from the courts or Congress.

Dartmouth and USC have seen challenges to athlete employment status before the National Labor Relations Board (NLRB) under the National Labor Relations Act (NLRA). Dartmouth continues to fight the unionization efforts, and in the USC case, a final decision might not be made until 2025, which would likely be appealed and then potentially appealed again to the federal appellate court. All of this is to say that a definitive answer is unlikely to be provided anytime soon. Even with a final ruling, the NLRA governs only private employers, leaving employment considerations for athletes at public universities to state law. Nevertheless, the NLRB is arguing that the NCAA and conferences are “joint employers” of the athletes, and thus all schools may also be subject to NLRB’s jurisdiction.[3]

While the recent cases seek a yes or no answer to employment status, a third hybrid option may thread the needle. This option could alleviate the NCAA’s fears of an employment model and provide enough fair value and protection for the athletes. During the NIL Congressional roundtable a few months ago, there was a strong consensus that college athletes deserve a share of the billions in revenue that they help to generate. ACC Commissioner Jim Phillips and Alabama Athletic Director Greg Byrne spoke of the potential of a “special status” for athletes without deeming them employees. On Monday, the College Football Players Association (CFBPA) announced they are taking the lead in advocating for such “special status.” The CFBPA is a group of current and former college football players who want to ensure football players “have a collective voice in the decision-making within their sport.”

CFBPA Executive Director Jason Stahl wrote in a newsletter on Monday that they “aim to create a new model of collective bargaining through legislation which stops short of full employment classification for college athletes, but which gives them numerous protections and the ability to collectively bargain with conferences and/or their schools.”[4] Essentially providing a way for athletes to participate in revenue sharing, without the other regulatory requirements in an employment model. The idea would be to implement key protections for athletes such as increased medical care, regulations for health and safety, and mechanisms for athletes to challenge unfair treatment by coaches and administrators into the specially created status, mirroring employment regulations. But would this model, one that takes away antitrust challenges to the NCAA and the possibility of employment and unionization, strip athletes of all the bargaining power they currently enjoy?

Cited in Stahl’s newsletter, Illinois law professor and labor attorney Michael LeRoy explored the idea of a special status in his 2012 article “An Invisible Union for An Invisible Labor Market.” LeRoy argues that “a unique hybrid form of collective bargaining that draws from elements in the NLRA and state collective bargaining laws” would be appropriate for college athletics. Stahl said they would expand the collective bargaining rights beyond those outlined in LeRoy’s article. LeRoy proposed limiting the bargaining to (1) scholarship shortfalls, (2) extended or improved educational benefits, (3) complete medical and hospital insurance for football-related injuries, (4) long-term disability insurance for injuries with delayed symptoms, (5) transfer and eligibility rights not inconsistent with NCAA rules, and (6) a grievance process to challenge abusive treatment by coaches and administrators.[5]

The special status would need a non-statutory labor exemption on antitrust claims. This exemption is enjoyed in the union-employers collective bargaining process, exempting the CBA from antitrust liability. In Brown v. Pro Football, Inc., the SCOTUS extended the non-statutory labor exemption beyond just collective bargaining to joint action by employers, here NFL teams, which was ancillary to the collective bargaining process.[6] This would apply to conferences and universities, allowing them to unilaterally impose terms if the collective bargaining process breaks down and stalls. However, this extension might not apply under the special status.

CFBPA Vice President and athlete advocate Maddie Salamone said that “given the unique role that college athletes play in the ecosystem of college athletics, it’s worth exploring a new model specifically designed for them.” The CFBPA said that they will soon be on Capitol Hill to meet with Congress members and to gauge their interest in supporting a bill incorporating this model.

Andrew Gagnon is a 2L at the University of Kansas School of Law where he is a representative in the Student Bar Association and President of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon.

Sources:

[1] https://www.wvlt.tv/2024/03/04/we-need-be-prepared-ut-creating-non-profit-pay-student-athletes-future/

 [2] Id.

[3] https://www.jdsupra.com/legalnews/nlrb-shoots-its-shot-dartmouth-1981813/#:~:text=On%20February%205%2C%202024%2C%20Region,under%20the%20direction%20of%20their

 [4] https://jasonstahl.substack.com/p/3d969521-0b7c-4972-a617-8a4b1e3cad98

 [5] Michael H. LeRoy, An Invisible Union for An Invisible Labor Market, 2012 Wis. L. Rev. 1077 (2012).

 [6] Brown v. Pro Football, Inc., 518 U.S. 231, 237 (1996).