NIL News

NIL News

Could Universities Soon See Student-Athlete Unions?

Universities around the country could soon start to see new student organizations forming—and those organizations are unions. For years, the notion that athletes could eventually form unions has been highly speculated. With the changes over the last year that now allow athletes to be compensated for their name, image, and likeness (NIL), this notion could soon become a reality. If athletes are recognized as employees, then they will be able to form unions and participate in collective bargaining with their schools, conferences, and the NCAA.

The Path to Unionization

Back in 2015, a group of football players at Northwestern University petitioned for the National Labor Relations Board (NLRB) to be recognized as employees. This approval would allow them to unionize. Unfortunately for the athletes, the NLRB dismissed the petition, claiming that doing so would cause instability in college sports.

Now, there is reason to believe that a case like this would turn out differently. Last year, Jennifer Abruzzo, the NLRB general counsel, released a memo arguing that college athletes can be considered employees under the National Labor Relations Act and are therefore eligible to organize. While this memo is not a binding document, it could influence how board members vote if a future case is brought by a different group of athletes.

What makes a student-athlete an employee?

It is important to understand that not all athletes may be recognized as employees, and it could arguably be dependent on where they go to school and what level they play at. The legal test to classify a person as an employee consists of the following elements:

  1. Whether an organization exacts substantial control over a worker’s professional schedule and workflow;
  2. Whether the worker also works for other organizations;
  3. And, whether the worker provides something of significant value to the employer.

Applying this test, it is clear that a star football player at a major powerhouse university could be considered an employee of the school. However, how would it apply to a DIII soccer player who loves the sport, but neither has a rigorous practice schedule nor provides significant economic value to the university? Based on these examples, it is likely that each athlete’s employment status will have to be evaluated on a person-to-person basis.

Roadblocks to Unionization

While unionization for athletes who can qualify as employees may be inevitable, it still will come with its own set of hurdles. These hurdles include:

  • Time – One major factor that may deter student-athletes from unionizing is their busy schedules. Forming a union takes quite a bit of effort and between practices, games, classes, traveling, and personal commitments, it may be difficult for students to find the time to organize.
  • State Law – Because there are no federal regulations guaranteeing union rights, states are left to decide how lax or rigid they will be when it comes to union formation. Currently, 27 states have taken a very rigid approach, which deprives unions of funding and bars them from compelling everyone under their contract to join. Athletes in these states will likely have a much more difficult time forming a union.
  • Universities – Universities themselves could also be a hurdle to unionization. Many coaches, directors, and other university staff will not want to deal with unionized athletes. Unions also need a level of secrecy while they are gaining momentum, but this would be difficult considering the close relationship that athletes have with university staff.
  • Inexperience – College sports is an industry with no union history. In forming unions, students will have to really work together to make big decisions on things like how to negotiate with management and where to spend their money. Athletes will be starting from scratch, as there are no templates or precedence to follow. This will require a lot of work and as well as comradery to keep members unified.

Looking to the Future

Despite the roadblocks that student-athletes will face in the early days of unionization, it is something that is bound to happen. There are considerable problems within college sports that will give them plenty to fight for. The one issue that will be at the forefront of this is money. Students are realizing that there is so much revenue being generated from their services, but they are not seeing even a fraction of this. Without them, there is no money to be made, and this will be their incentive to organize.