Can College Athletes Unionize Within A Conference? State Laws Will Dominate Until After The 2024 Election

COLUMBUS, OHIO – NOVEMBER 12: Marvin Harrison Jr. #18 of the Ohio State Buckeyes celebrates his … [+] first quarter touchdown with teammate Emeka Egbuka #2 of the Ohio State Buckeyes during a game against the Indiana Hoosiers at Ohio Stadium on November 12, 2022 in Columbus, Ohio. (Photo by Ben Jackson/Getty Images)

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Sports fans, commentators and even athletics directors are openly debating the feasibility of whether college athletes could organize and collectively bargain in the future.

The issue of collective bargaining at public land grant universities appears to be a major sticking point in addressing the legal problems facing college athletics. Lawyers I’ve spoken to across the country all seem to be in agreement-the only way out of this expensive legal mess is for colleges and universities is to sit down and allow the athletes a say in their working conditions.

The NCAA wants a Federal antitrust exemption first.

While this article will not become a treatise on the history of unionized labor, there are interesting points to note. First, collective bargaining rights differ widely from state to state (and, in some places, local counties and cities have differing rules). The American Federation of State, County and Municipal Employees (AFSCME), as part of its “Building Worker Power” initiative, published a map that almost immediately demonstrates the issues that college athletics structurally face trying to navigate unionization on a conference wide basis.

A quick scan tells college sports fans that there is an obvious direct conflict between state law and athletic conference geography. Consider the SEC and the Big Ten Conferences and the location of their campuses. Only the state of Florida currently allows for collective bargaining. Perhaps an athlete who is considering enrolling at the University of Florida, (as compared to Alabama, Texas or Louisiana), might see an advantage with wanting to negotiate their working conditions? Don’t rule it out in an athlete’s decision making matrix.

Consider the Big Ten. The Universities of Iowa and Indiana might be up against a distinct recruiting and retention disadvantage (as compared to the rest of the Big Ten schools) when it comes to athlete’s rights.

It doesn’t look any better for the ACC or the Big 12 either.

I asked James Nussbaum, the former in-house counsel (focusing on athletics) at Indiana University for eight years, for his reaction to this situation. He currently works for Church Church Hittle + Antrim.

Would each state need to change their laws to accommodate a conference’s geography?

“There may be a pathway for students to unionize and collectively bargain without each state changing their respective laws. In theory, there could be a joint employer relationship where the athletes could bargain with the conference or governing body even if they could not bargain with the state schools directly (see the USC NLRB case). Further, if student-athletes are employees, the state schools could still negotiate with them contractually even if they were not able to collectively bargain with them”, Nussbaum said.

DALLAS, TEXAS – OCTOBER 12: Quinn Ewers #3 of the Texas Longhorns reacts as fans cheer during the … [+] fourth quarter against the Oklahoma Sooners at Cotton Bowl Stadium on October 12, 2024 in Dallas, Texas. (Photo by Alex Slitz/Getty Images)

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Could the Federal government overrule State laws?

“State-by-state differences in legislation lead to advantages for certain states over others and has led to some of the recent NCAA rule changes because the NCAA wants schools to be on similar footing,” Nussbaum continued. “Differences regarding employment status/collective bargaining would lead to similar advantages and disadvantages, which is one of the reasons why the NCAA is seeking legislative action declaring student-athletes as non-employees and allowing them to enforce rules without fear of antitrust litigation. I think it is very unlikely (if even permissible) that the federal government would override state laws regarding recognizing unions.”

Is the end game all about getting a Federal antitrust exemption?

Jodi Balsom, a clinical law professor at NYU’s Brooklyn Law School, told the AP in April, “The end game for the universities is to get into federal court and relitigate whether students should be considered employees,” she said. “The idea is that the NLRB decision-making process has lately been heavily politicized. The Biden administration has, in no uncertain terms, in a series of executive orders, declared that one of their priorities in this administration is worker empowerment. They want to expansively define the concept of employee, not just in the college context, but throughout the economy.” (Note: the NLRB and state laws are two different mechanisms for determining athletes’ rights; the NLRB focuses on private employers; state laws focus on public).

The upcoming 2024 election may define the landscape for a host of items on the Country’s national agenda. For college sports fans, the uncertainty surrounding whether athletes can be employees, if indeed it becomes a part of a larger argument surrounding worker’s rights, could drag the problem out for years, damaging the ecosystem further. The political party that takes control of Congress may determine the future for big time college sports-all of them.

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