2020 politics adds momentum to paying college athletes, unionization

The Democratic presidential primary is providing added momentum not only for efforts to allow college athletes to get paid, but also for them to organize as unions. 

Sens. Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.) are publicly supporting the push to allow college athletes to profit from their name, image and likeness — and have also backed calls for college athletes to be permitted to form unions.

“This is a good start,” Warren tweeted after the NCAA in late October voted to begin the process of allowing athletes to benefit from the use of their names and images. “Now it’s time to allow them to join a union—and get paid.”

This is a good start. Now it’s time to allow them to join a union—and get paid. https://t.co/xureLUMwdB

— Elizabeth Warren (@ewarren) October 29, 2019

The call from the progressive senators may help revive energy for another element of the push to upend the NCAA’s amateurism model. The National Labor Relations Board in 2015 dismissed Northwestern University football players’ petition to unionize and gain benefits through collective bargaining. Four years later, unionization is gaining renewed attention as Republicans and Democrats rally around efforts for college athletes to profit from their work.

The NCAA’s ruling came just weeks after California Gov. Gavin Newsom (D) signed a bill allowing college athletes to sign agents and earn compensation through endorsements and sponsorships. The first-of-its-kind law is set to go into effect in 2023.

GOP and Democratic-led legislatures in states such as Washington, Colorado, Florida, New York and Illinois are considering similar legislation. 

At the federal level, Rep. Mark Walker (R-N.C.) has introduced a bill that would amend the definition of a qualified amateur sports organization in the tax code and erase restrictions barring student-athletes from profiting off the use of their name, image and likeness. 

The NCAA has come under mounting pressure to reform a system that rewards universities with massive revenues but offers little compensation outside of scholarships to athletes. Heightened scrutiny has led to some reform, but the NCAA has continually pushed back against efforts that it claims “professionalize” college sports. 

Even in its vote to allow athletes to benefit from the use of their name, image and likeness, the association said that it would need to be done in a manner “consistent with the collegiate model,” a statement many argued signaled the NCAA wasn’t budging. 

Pressure will likely increase in the coming years, and has sparked a reemerging discussion about giving college athletes opportunities to collectively bargain with universities. 

In his plan to end “exploitation” in college sports, Sen. Cory Booker (D-N.J.), who like Warren and Sanders is a Democratic presidential candidate, proposed forming a federal commission that would make recommendations on college athletes’ ability to organize as unions. 

At the state level, Maryland Del. Brooke Lierman (D) introduced legislation in February permitting college athletes at public schools to unionize and collectively bargain on matters such as scholarship terms, insurance benefits and profiting from their name, image and likeness. 

While the legislation was later withdrawn, Lierman told The Hill that she plans to reintroduce a bill in January that forms a commission to study issues related to allowing college athletes the opportunity to bargain collectively. 

The proposals from Booker and Lierman zero in on the economic inequities of a billion dollar industry that denies athletes the ability to earn compensation. But they also push for instituting additional health and safety protections for college athletes. Lierman specifically pointed to a sexual abuse scandal involving Larry Nassar, a former Michigan State faculty member and USA Gymnastics doctor, and the death of Maryland University football player Jordan McNair, who died after suffering a heat stroke during a summer workout, to justify a commission’s necessity. 

Maryland University has since admitted that McNair’s heat illness was not properly identified and treated. 

“If public universities at public colleges are not going to step up and enact the protections and measures to protect our athletes, then it really falls to state governments to do that,” said Lierman. “Because we are the ones who control our public universities and colleges.”

“This is about making sure students have rights,” Lierman added. 

Former Northwestern quarterback Kain Colter emphasized those concerns when he led a group of his teammates in seeking a union in 2014. Colter advocated for collective bargaining to gain greater protections for sports-related injuries and an “educational trust” to improve graduation rates. 

But the fight ultimately failed when the NLRB, which has oversight over private universities, declined to assert jurisdiction, ruling that a decision would “not serve to promote stability in labor relations” given that it would only affect a single team.

Despite the setback, the effort contributed to an environment in which the NCAA is consistently confronted with alleged injustices. In addition to the unionization attempt, the NCAA has faced multiple lawsuits in recent years over its compliance with antitrust and labor laws. Advocacy efforts from organizations like the National College Players Association (NCPA) have also helped lead to reforms on matters such as scholarship terms. Now, legislators are actively pushing for allowing some of those athletes to earn compensation.

But can the legislative momentum for athletes to profit from their name, image and likeness have any effect on whether they are employees and can collectively bargain? 

William Gould, an emeritus professor at Stanford Law School who chaired the NLRB between 1994 and 1998, told The Hill that many of these efforts “can’t help but move us towards a reevaluation” of the question. But he stressed that the door through the NLRB remains shut. 

“The Obama board wouldn’t move ahead on this,” he said, adding that “the odds are just completely remote” that the board under the Trump administration would entertain classifying college athletes as employees under the Federal Labor Relations Act. 

Gould said that “the state level covering public universities creates a much better opportunity,” noting state labor boards and statutes have been more receptive to identifying students as employees. 

Invoking Maryland’s legislative efforts to protect college students in sexual assault and Title IX cases, Lierman said that “it only makes sense for us to be involved in the space of protecting our student-athletes.” She acknowledged that getting a bill of this nature is a “heavy lift,” adding that it’s a reason why she will introduce the legislation merely as a commission when the General Assembly reconvenes. 

Meanwhile, Booker has expressed confidence about a president’s ability to explore the problem, noting that the chief executive has “a lot to say” about who is on the NLRB. 

“I think we’ve gone the wrong way with unionization alone in this country,” Booker said on The Athletic’s “The Big Lead” podcast. “One of the reasons why I want to have the new federal commission is really to explore compensation models and ways for athletes to address some of these issues, especially in those revenue generating sports. Those workers should have a voice.”  

Warren and Sanders have released sweeping plans for strengthening organized labor, though neither has commented on how they might address college-athlete unionization. 

The polarizing reaction to Northwestern’s unionization attempt indicates that this effort will continue to face greater challenges than the movement to let college athletes profit from their name, image and likeness. While many Democrats endorsed the union effort, several Republican congressmen filed an amicus brief urging the NLRB “to find that scholarship football players are not employees.” Republicans in Ohio and Michigan also unveiled legislation to block college athletes from mounting similar efforts. 

But Warren and Sanders’ nod to the issue is a sign that the fight for allowing college athletes to unionize isn’t completely dead. And Booker and Lierman’s proposals show that lawmakers are still interested in addressing it.

“For a long time this wasn’t being discussed seriously in policy-making circles,” Lierman said. “Now it is.”