Glenn Wong is a lawyer and professor at the Mark H. McCormack Department of Sport Management at the Isenberg School of Management, University of Massachusetts Amherst. He is currently a visiting scholar at the Stanford University Law School.
There is a long way and possibly several years to go before the case of CAPA v. Northwestern is finally decided and all appeals are exhausted. The case will likely first be reviewed by the National Labor Relations Board in Washington, D.C., and after that, there is the possibility of appeals to the Federal Circuit Court of Appeals and the United States Supreme Court.
But if the final decision is in favor of unionization, or if there is a settlement recognizing a union before the appeals are exhausted, what will the unionized world of college sports look like in the year 2020? Here are a few questions that will need to be answered along the way.
The ruling, if upheld, would cover private schools. How would this work if it was expanded to public schools?
Let’s start with Northwestern University, a private college. Football student-athletes at Northwestern with eligibility remaining would have the option to select a union to represent them in negotiating a collective bargaining agreement with Northwestern. In addition, it is very likely that student-athletes at other private schools would follow. The public schools do not fall under the jurisdiction of the National Labor Relations Act, but are instead guided by state labor laws. If public school student-athletes are recognized as employees, it would either be accomplished through legal action or recognition by the employer—the state university.
It will be interesting and important to see how many schools this totals. There are 63 (soon to be 65) schools in the Big 5 power conferences (ACC, Big 10, Pac-12, SEC, Big 12). If most of the student-athletes at those schools decide to be represented by a union, the rest are likely to follow.
How would the NCAA interact with the Union?
From the employer’s perspective, if Northwestern is the only school with a union, then it would negotiate with the union on an individual basis. If unions become recognized at multiple schools, including public and private universities, then each school could choose to negotiate either individually or collectively. If a university chose to negotiate collectively, then both the student-athletes and the “employer” schools would need to select representation for collective bargaining negotiations. The NCAA could act as this representative. However, it is more likely that the representation would consist of a subset of schools that are unionized.
An important future question will be whether the top-level schools remain with the NCAA. Some have projected/speculated that the top schools, i.e., the top revenue-generating programs, would leave the NCAA and form their own league or organization. If that happens then this new entity would likely handle collective bargaining negotiations on behalf of its new member institutions.
What are the Title IX considerations?
There will be Title IX considerations unless the unionized sports are spun off into a separate entity as mentioned above. Title IX is a federal statute passed in 1972 that has significantly impacted colleges and universities through the years. It requires gender equity in three areas: participation opportunities, financial assistance and treatment of programs. The key concept is proportionality, which requires participation opportunities and athletic scholarships to, in effect, be proportional to male and female enrollment percentages at the school. Although there are variables and nuances, this scenario will provide an example of the possible impact:
Assume a Division I (FBS) football program with 85 scholarships, (the maximum number allowable under NCAA rules). While a range of figures has been proposed, the NCAA has estimated that the average scholarship fails to cover $3,500 of the cost of attendance for student-athletes. If the scholarship value is increased by $3,500 to meet the cost of attendance, then the total additional cost of all scholarships for the football team is $297,500. This increase in scholarship money will have to be matched for female student-athletes. Therefore the total increase in cost is now $595,000. If the increase in the value of a scholarship is implemented for all student-athletes in an athletic department, the total increases significantly.
For a Division I athletic department with 250 to 300 scholarships (as reported of an SEC school), the increase in scholarship funding to cover the cost of attendance would be $1,050,000. This may be financially viable for the Big 5 power conferences, but it will be very difficult for the remaining 185 Division I football schools.
How would the money be distributed among players? Would there be an equal stipend for each player?
The union, since it represents its employees (student-athletes), and the employers will have to decide going into collective bargaining negotiations what they want and then how to distribute the money. The distribution could be across-the-board, or it could take seniority or position into consideration.
Would players be allowed to earn money from endorsements?
Player endorsements could be a negotiable issue between the union and the employer that representatives from the union may pursue. Professional sports league unions have both group licensing and individual endorsements. But a college players’ union could negotiate using this template or arrive at something much different.
The player endorsement rights will be a very important issue and decision. If the final model is similar to current professional team league sports, the endorsement rights would be shared among the student-athletes. The schools would be able to use the players to promote games, the team, and to attend a certain number of team promotional activities. The union would hold group licensing rights (used for video games, trading cards, etc.) of any large group of players. In Major League Baseball, a group of three players constitutes a group for licensing purposes, while the NFL requires that six players be included. The individual players will still have the ability/opportunity to enter into individual endorsements and/or small group endorsement deals. Of course, all of the parties (universities, players and unions) would have the flexibility to change these parameters.
Follow the author on Twitter @WongSportsLaw.