As leaders from the Power 5 conferences—the ACC, Big 10, Pac-12, SEC and Big 12—contemplate the cancellation of football and other fall sports, a group of college football players is pushing back. One key demand: They want to form a players’ association.
Early Monday morning, Clemson quarterback Trevor Lawrence and other Power 5 players tweeted a series of demands under the banners #WeAreUnited and #WeWantToPlay. In addition to the formation of a players’ association, the players seek health and safety protocols to protect college athletes against COVID-19, as well as measures to ensure that players who opt out aren’t punished for their decisions. The group says it is “representative of the players of all Power 5 conferences,” though it’s unclear to what degree.
The demands arise as leaders from the Power 5 discuss postponement of fall sports in response to the COVID-19 pandemic, which continues to ravage the United States. The Mid-American Conference and Ivy League have already canceled sports for the season.
Inasmuch as college administrators worry about the ramifications of COVID-19, they may fear the creation of a college football players’ association—whether that means forming a union of players or even just a trade association—even more, as it would permanently alter college sports.
As the law stands today, college football players could not form a union. Under labor law, a union consists of employees. And while there is debate about whether college athletes ought to be recognized as such, that debate hasn’t translated into change.
There would be many hurdles for college football players to climb before forming a union. As detailed in Sportico’s analysis of demands by Pac-12 football players, the fact that some players play for private universities while others play for public universities is crucial.
The National Labor Relations Act (NLRA), a federal law, determines whether workers at private universities qualify as employees and whether employees can unionize. The NLRA is enforced by the National Labor Relations Board, which in 2015 declined to recognize Northwestern University Football players as employees.
In contrast, state labor law determines whether a public university worker is an employee and whether (and under what conditions) employees can unionize. State laws vary widely, with some states adopting so-called “right to work” policies that limit or prohibit employees from unionizing.
Take the quarterback Lawrence as an example. He plays for a public university in South Carolina, a state whose Supreme Court has made clear that public employees do not have the right to collective bargaining. In other words, even if Lawrence could establish that he is a Clemson employee, Lawrence could not join a union to negotiate employment terms on his behalf. He and his Tigers teammates would instead individually negotiate employment contracts with their school or become at-will employees.
A union of college football players is further complicated by the uncertainty over whether enough players on a team would even vote in favor of a union. For those enrolled at a private university, at least 30% would need to sign a petition declaring they want to form a union. Then, after an election is held, a majority would need to vote in favor of unionizing.
The idea of a union of football players drawn from multiple schools faces even more hurdles. Aside from the fact some play for public colleges and others play for private ones, they play for teams that are part of individual universities. Those universities are not in a professional sports league. They are instead members of the NCAA, which under the Federal Tax Code is recognized as a 501(c)(3) tax exempt entity because it “fosters national or international amateur sports competition [emphasis added].” The U.S. Supreme Court has also repeatedly recognized the NCAA as an association of non-professional sports. To overcome both federal law and U.S. Supreme Court precedent would be challenging.
A trade association of college football players is a more plausible alternative, as it would not require employee status. An association simply refers to a group of individuals or businesses that share common interests and seek to maximize those interests through a group voice.
For instance, the Motion Picture Association of America advocates for movie studios while the NFL Coaches Association does the same for NFL coaches. Neither conducts collective bargaining with an employer. However, both can facilitate in the negotiation of group contracts. A trade association of college football players could potentially accomplish the goals set out in the #WeAreUnited and #WeWantToPlay letters while avoiding the constraints of labor law and not causing panic among schools about the prospect of suddenly adding hundreds of employees.
A trade association for college athletes is not a new concept. It has been discussed since Ed O’Bannon’s litigation against the NCAA, particularly as a vehicle for negotiating group licenses on behalf of college athletes for the use of their names, images and likenesses in video games, apparel and merchandise. There is also an organization in place that advocates for college athletes, the College Athlete Players’ Association. The NCAA, however, does not permit group licensing. Also, while the NCAA now supports an emerging plan for college athletes to profit from their name, image and likeness, the association remains opposed to an entity that would collectively represent athletes.
But under pressure from athletes, could the NCAA back down and permit a trade association? Even that would be a game-changer.
