The lead up to the Big Ten Media Days featured a headline with some significant legal ramifications: a reported meeting between a conference commissioner Kevin Warren and a group called the College Football Players Association (CFBPA).
The Big Ten later claimed that the CFBPA’s executive director Jason Stahl had overstated the nature of their discussions and then booted the fledgling athlete-rights organization from its Indianapolis press gathering. For its part, the CFBPA, which was launched last summer as a kind of non-union trade association, suggested that it might pursue formal unionization if the Big Ten failed to meet its demands.
But the CFBPA’s initial plan to negotiate without pursuing formal unionization status is problematic. The distinction between a union and a non-union “association” is an important one, and centers on the Supreme Court’s June 2021 decision in NCAA v. Alston.
Alston was based on the Sherman Antitrust Act’s prohibitions on commercially anticompetitive actions like price fixing—including the price of labor. The Supreme Court’s unanimous ruling affirming the Act’s coverage of college sports forced the NCAA to revise its stance on many issues, reversing, for example, previously proposed NIL restrictions in favor of the more open policies in place today.
But while the Supreme Court’s decision in Alston found the NCAA not inherently immune to antitrust law, the association has one longstanding exemption available: the nonstatutory labor exemption.
Created in 1965, the exemption grants antitrust protection to all negotiated terms and conditions of employment contained in a collective bargaining agreement (CBA). For example, a salary cap enacted and enforced by an employer would normally be a clear antitrust violation, but such caps are legal when leagues and unions agree to them in a CBA.
This exemption is a major incentive for employers to collectively bargain, for both cost certainty and competitive balance. But it only applies to bargaining between employers and labor groups formally recognized by the NLRB as unions.
A major issue arises concerning a non-union CFBPA: What is the incentive for the Big Ten to agree to any real concessions in negotiations? Sure, just by entering negotiations the Big Ten can receive public goodwill, showing themselves as open to engaging with the players’ concerns. But any revenue sharing scheme would not be protected from antitrust scrutiny. New recruits who are not part of these negotiations could sue the Big Ten (and the CFBPA!) for illegally fixing their share of the money instead of allowing them to individually negotiate a potentially larger revenue share.
In contrast, a formally collectively bargained agreement would bind new players who join the conference later and bar antitrust lawsuits alleging price fixing. But the same principle would presumably not apply to a group merely holding itself out as “an association to represent players’ interests.” And if courts or Congress were to extend similar protection to agreements with non-unions, it would have broadly negative ramifications not just in sports but across all industry, removing much of the incentive for employers to recognize unionization attempts.
Creating formal unions for college athletes with a variety of interests and opinions will be difficult—even efforts confined to one sport, one conference, or just one team. But this unionization step is necessary. A shortcut version like that initially framed by the CFBPA simply does not have the legal weight and backing to make a difference in trying to shape the future of college sports. It might even do more harm than good.
Ehrlich is an assistant professor of legal studies with the Department of Management at the Boise State University College of Business of Economics. His research focuses on the legal governance of sports leagues.