Regulating Collegiate Athletics: Forging New Ground for the Institute-Athlete Relationship – N.Y.U. Journal of Legislation & Public Policy

2022 Legislation Competition Winner

By: Madison Lahey

April 18, 2022

Congress faces a slate of options to regulate the athlete-university relationship in the wake of NCAA v. Alston.¹ Two key bills have emerged: one explicitly extends the protections of the National Labor Relations Act (NLRA) to scholarship athletes, and the other offers a broad statutory guarantee to revenue-sharing and educational and medical benefits. Senators Murphy and Sanders’ “College Athlete Right to Organize Act” (CARO) guarantees scholarship athletes the right to unionize under the NLRA.² Senators Booker, Blumenthal, Gillibrand, and Schatz propose baseline standards for health, education, and compensation for all college athletes with the “College Athletes Bill of Rights” (hereinafter, “Bill of Rights”).³ Proponents of flexibility who believe that college athletes are best served by crafting collective bargaining agreements (CBAs) with individual or multiple institutions of higher education are likely to favor CARO. Those who value concrete, minimum guarantees for all college athletes, including walk-ons without scholarships, should prefer the Bill of Rights. Of the two, the Bill of Rights is the best option for all athletes because it grants affirmative rights beyond those gained through a collective bargaining process. Further, the Bill of Rights establishes procedural standards to protect those rights that are well suited to the transient nature of athletes’ tenure at institutions of higher education.

CARO and the Bill of Rights in Detail

College Athlete Right to Organize Act

The College Athlete Right to Organize Act officially classifies college athletes as employees.⁴ CARO would formally enact the NLRB General Counsel Abruzzo’s memorandum concluding that scholarship athletes are covered by the NLRA.⁵ Though the NLRB previously declined to formally resolve whether scholarship football players were employees in Northwestern University due to lack of jurisdiction, it emphasized that football players produced a product with substantial revenues for their teams and that the question of whether athletes are statutory employees remained open.⁶ CARO directly amends the NLRA definition of employees to include scholarship players, subjecting players and institutions of higher education to NLRB jurisdiction.⁷ Scholarship players would therefore have the right to collectively bargain, hold a union election, and be free from retaliation as granted by the NLRA.⁸

The College Athlete Bill of Rights

The Bill of Rights guarantees minimum protections for college athletes and establishes the Commission on College Athletics to set standards to guarantee those protections. The Bill of Rights does not address the employee classification of athletes under the NLRA. Rather, it responds to the issues at play in Alston by prohibiting universities and conferences from restricting athletes’ ability to make individual or group contracts to market their Name, Image, Likeness, or Athletic Reputation.⁹ Related provisions protect college athletes from a grant-in-aid reduction after receiving an endorsement¹⁰ and prevent institutions of higher education from representing athletes in endorsement contracts or regulating that representation.¹¹ The Bill of Rights also establishes non-compensatory guarantees to medical care¹² and educational guarantees.¹³ The Bill of Rights also creates the Commission on College Athletics to enforce its provisions by, for example, setting minimum standards for the guarantees and developing a process to report violations of the Bill of Rights.¹⁴

CARO Divides Athletes as Employees and Non-Employees Within Teams

CARO offers scholarship athletes access to the pre-existing infrastructure for asserting labor rights embodied in the NLRA. However, it would bring an employee/non-employee dichotomy to teams: players are either employees, with all the bargaining rights and protection that the classification affords, or they are not, and their circumstances remain unchanged.¹⁵ This dichotomy raises two practical concerns. First, the divide between scholarship athletes and their non-scholarship and walk-on teammates will be more pronounced. Non-scholarship athletes face similar health and educational concerns to scholarship athletes, but CARO would not grant them an avenue to advocate for their protection. Spillover effects of scholarship athletes’ employee status may benefit all team members, such as access to better health information or connections to sponsors. However, this is a poor substitute for direct advocacy that could address the unique needs of non-scholarship and walk-on athletes. Second, institutions of higher education would face the incentive to consolidate scholarships within their teams. Some sports, like football and basketball, generally maintain a nearly 1:1 relationship between scholarships and athletes.¹⁶ Others provide more partial scholarships to more athletes. While the benefit of offering partial scholarships for recruitment purposes may outweigh the cost of having more athlete-employees, classifying athletes by scholarship status may incentivize some schools to reconsider their scholarship distribution in favor of creating smaller employee bargaining units. Taken together, the employee/non-employee distinction created by CARO stands to generate unnecessary separations between athletes on the same team.

On the other hand, the Bill of Rights provides baseline protections for all athletes independent of scholarship status, employee classification, or membership in a collective bargaining unit. All athletes would gain the right to accept sponsorships,¹⁷ access healthcare when injured,¹⁸ and obtain educational support.¹⁹ Opponents may argue that prescribing a benefits floor is less preferable to the expanded range of options available through collective bargaining. If an athlete bargaining unit wanted to forgo educational support in exchange for heightened revenue-sharing requirements, for example, the Bill of Rights would preclude them from doing so. However, remanding the pursuit of these benefits to the idiosyncratic processes of collective bargaining at each individual institution (or across institutions through multi-unit bargaining)²⁰ will subject athletes to disparate protections. Given the lack of sophistication among college athletes (addressed below), it is unlikely that the marginal benefit of an additional bargaining chip would outweigh the cost of anchoring any collective bargaining to a lower baseline of no health, educational, or sponsorship guarantees.

The Bill of Rights also offers more equitable distribution of financial gains from the sort of third-party sponsorship contemplated in NCAA v. Alston. First, the bill grants sponsorship rights to all athletes,²¹ regardless of scholarship status, and avoids the employee/non-employee dichotomy inherent in CARO. Second, the bill goes further by requiring that institutions of higher education distribution a portion of Name, Image, and Likeness revenue to their intercollegiate athletic associations. Those intercollegiate athletics associations are then obligated to send a portion to all athletes within that sports division.²² Thus, when a university benefits from a lucrative sponsorship contract, a portion of that revenue will be distributed to benefit all athletes in the same division and sport. While athlete-employees could negotiate for such revenue-sharing as part of a collective bargaining agreement, the Bill of Rights establishes a baseline for equitable distribution that ensures that each team and each player gets a slice of the pie.

The Bill of Rights Suits the Transient Nature of College Athletics

The NLRB has recognized that the average college athletes’ short-term career is an obstacle to collective bargaining. Student athletes do not neatly fit a standard employer model; rather they present “novel and unique circumstances,” that distinguish them from graduate students and professional athletes, both of whom are employees subject to the NLRA.²³ Student athletes may only attend universities for one or two years, and most will remain in school for no longer than five years. The truncated time period may limit athletes’ ability to organize as retaining the institutional knowledge necessary for a successful collective bargaining agreement is more challenging with a constantly churning employee group that lacks consistent internal leadership. If it takes months or years to reach an agreement, participating athletes may transfer or graduate and the needs and demands of the bargaining unit may fluctuate more frequently than in other workplaces.

Further, though athletes are compensated with scholarships, their membership on sports teams is fundamentally extracurricular. By placing the onus on athletes to engage in collective bargaining on top of school and sports obligations (let alone personal obligations external to their collegiate lives), CARO places a higher burden on athletes than the NLRA does on employees in full-time workplaces. While participation in workplace organizing may provide a “teachable moment” for athletes, the disadvantage to student athletes, who are less sophisticated actors, outweighs that benefit.

Of course, athletes may seek assistance in the collective bargaining process. In general, professional sports agreements can serve as templates for initial contracts, and presumably sports lawyers will stand ready to help student athletes negotiate. The Bill of Rights, however, provides athletes with comparatively more support by empowering the Commission on College Athletics to set minimum standards for endorsement contracts and the oversee the certification of agents who seek to represent athletes.²⁴

Ultimately, as well-resourced and prepared as athletes-turned-employees can become, their institutions of higher education-turned-employers will remain more sophisticated, thanks in part to their institutional lifespan and finances. The Bill of Rights addresses this disparity by establishing basic guarantees for athletes without demanding participation in a collective bargaining process not designed for them. Between the substantive areas the Commission on College Athletics governs and the guarantees that it will enforce, it would protect all athletes with consistent “workplace” oversight without the need for a collective bargaining agreement. Under CARO, some well-positioned athletes could bargain for agreements that supersede the baseline that the Commission sets; but the Bill of Rights assures all athletes of protections and provides equal access to a forum to designed to enforce them.

Conclusion

Support for CARO may be strong because the classification of athletes as employees seems natural considering the NRLB’s decisions and General Abruzzo’s memo.²⁵ But the NLRB’s decisions arose in a void of legislative guidance. Given the impetus for action spurred by Alston, Congress should focus its energy on legislation that addresses student athletes’ particularized needs as students and as athletes. As students, they require health and educational guarantees from their institutions. As athletes, they require a path to equitable compensation for their work on behalf of their institutions. Only the College Athletes Bill of Rights appropriately balances these twin needs.

Madison Lahey, J.D. Class of 2024, N.Y.U. School of Law. This is the winning submission to the Journal’s 2022 Legislation Competition accompanying its April 1, 2022 symposium, College Athletics and Employment Law: A Conversation About Intercollegiate Sports and the Aftermath of NCAA v. Alston.

Suggested Citation: Madison Lahey, Regulating Collegiate Athletics: Forging New Ground for the Institute-Athlete Relationship, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2022).

1
NCAA v. Alston, 141 S. Ct. 2141 (2021). (holding that the NCAA’s earnings restrictions for student athletes violated federal antitrust law).
2
College Athlete Right to Organize Act, S. 1929, 117th Cong. (2021).
3
College Athletes Bill of Rights, S. 5062, 116th Cong. (2020).
4
See, e.g., Northwestern University, 362 N.L.R.B. No. 167 (2015) (declining to rule on the employee status of scholarship football players due to lack of jurisdiction); Columbia University, 364 N.L.R.B. No. 90 (2016) (holding that student assistants are employees under the NLRA); Boston Medical Center Corp., 330 N.L.R.B. No. 30 (1999) (permitting medical interns, residents, and fellows to unionize).
5
Jennifer A. Abruzzo, Nat’l Lab. Rel. Bd., Memorandum GC 21-08, Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act (2021) (defining student-athletes as employees under the National Labor Relations Act).
6
Nw. Univ. and Coll. Athletes Players Ass’n, 362 N.L.R.B. No. 167 (2015).
7
S. 1929 § 3.
8
29 U.S.C. §§ 157-8.
9
S. 5062 § 3(a)(1).
10
Id. §3(b)(2).
11
Id. §3(c)(2).
12
Id. §§ 6-7.
13
Id. § 8.
14
Id. § 11(a).
15
S. 1929 § 3(a)(2)(A). (defining employees as student athletes who receive “any form of direct compensation, including grant-in-aid, from the institution of higher education”).
16
College Athletic Scholarship Limits 2020-21, https://scholarshipstats.com/ncaalimits (last visited Mar. 27, 2022). (finding that head count sports—NCAA I sports where scholarships are limited by number of recipients—generally award more full scholarships than equivalency sports—all other NCCA sports where scholarships are limited by total dollar amount).
17
S. 5062 § 3(a)(1).
18
Id. §§ 6-7.
19
Id. § 8.
20
S. 1929 § 3(b).
21
S. 5062 § 2(4). (defining college athlete as “an individual who participates in an intercollegiate sport for an institution of higher education”).
22
Id. § 5.
23
Nw. Univ., 362 No. 167.
24
S. 5062 § 11(d)(1).
25
See Abruzzo supra, note 5.