In the latest Congressional proposal to demand sweeping reforms in college sports, a group of Democratic senators and representatives are introducing a bill they dub, “the College Athlete Right to Organize Act.” The bill, announced Thursday, would provide college athletes a federal right to engage in collective bargaining. The sponsors are U.S. Senators Chris Murphy of Connecticut and Bernie Sanders of Vermont, and U.S. Reps. Jamaal Bowman (N.Y.), Andy Levin (Mich.) and Lori Trahan (Mass.).
If it becomes law, the bill would dramatically alter the relationship between college athletes and their schools.
For one, it would recognize college athletes as employees. The bill notes that “college athletes exhibit the markers of employment as established under the common law definition of the term employee . . . . They perform a valuable service for their respective colleges.” It adds that schools greatly control how and when the athletes perform their work, just like employers control their employees. To that end, the bill would amend the National Labor Relations Act to classify a college athlete as an employee if he or she receives a grant-in-aid or other forms of compensation.
Just as profound, the bill would amend the NLRA to cover both private and public colleges as employees. This would reflect a stunning change in U.S. labor law. Currently, the NLRA only applies to private employers and thus only private colleges. When Kain Colter and other Northwestern football players unsuccessfully pursued recognition as employees (in hopes of then unionizing, which is predicated on employee status), their argument relied on the NLRA.
The NCAA disputed that the bill would benefit individual players. “College athletes are students and not employees of their college or university. This bill would directly undercut the purpose of college: earning a degree,” the organization said in a statement. “We will continue to work with members of Congress to focus on issues that align with our priorities. But turning student-athletes into union employees is not the answer.”
Yet college athletes at public universities are governed by state labor laws. In some states, public universities are barred or greatly limited in the right to unionize. The bill, then, could allow college athletes at some public universities to unionize while faculty and staff at those universities are unable to do so. If the bill becomes law, it’s possible that states could challenge it in court, on grounds that it interferes with state law, and claim that it unlawfully attempts to preempt those state laws.
The bill will surely face sharp political headwinds. Far less transformative bills, such as those that would guarantee NIL rights for college athletes and enable them to sign endorsement deals with third parties without suffering adverse consequences from their schools, haven’t advanced past committees, let alone led to hearings or votes. The lack of Congressional action on NIL has occurred while a group of states have adopted NIL statutes, six of which are set to begin on July 1. If less metamorphic bills have stalled in Congress, it’s fair to question why this bill, which only has Democratic sponsors, would gain momentum.
Universities will be inclined to lobby against a bill that could significantly increase its labor costs. Whether or not college athlete employees are represented by a union, they would, as employees, negotiate salaries, health care benefits and other aspects of employee compensation. They could also face employee-related repercussions, such as being fired from a job. How a firing from a team would intersect with an athletic scholarship warrants closer examination.
Expect to hear that college sports at many schools will be cut if the bill became law. Those threats should be taken with a grain of salt given the economic value college sports provides, including enhancing fundraising efforts with alumni and recruiting high school students for admissions.
The bills’ sponsors are nonetheless firm in their view that transformative change is needed.
These rights, Murphy expresses in a statement, “will help athletes get the pay and protections they deserve and forces the NCAA to treat them as equals rather than second-class citizens. It’s a civil rights issue, and a matter of basic fairness.” The sponsors also stress that the bill is supported by the AFL-CIO, United Steelworkers and Advancement of Blacks in Sports.
—With assistance from Eben Novy-Williams
(This story has been updated with a statement by the NCAA in the fifth paragraph.)