Can College Athletes Unionize?

The National Collegiate Athletic Association no longer exists in a vacuum. The NCAA was built on an altruistic notion of aiding and assisting student-athletes, but as the popularity of college sports has grown in this country—namely the multibillion-dollar industry that surrounds both college football and basketball—the rules once thought to protect and serve the masses now seem, to many, to be the same rules pinning the masses down.

The more popular amateur athletics has become, the more lucrative the situation has gotten for those in charge. And yet, as the pie has grown exponentially over time, the NCAA steadfastly refuses to offer the players a larger piece.

The rules put in place by the NCAA and its member institutions—the very same rules that once rewarded and safeguarded those who play these high-stakes games—are the tenets of a non-negotiable contract each student-athlete is now given no choice but to sign.

Current and former players are getting increasingly disgruntled with the NCAA's imbalance between the money coming in to schools and what is going out to the players.

Given a riding tide of discontent, what can the players do to change the system?

According to Ramogi Huma, executive director of the National College Players Association, they can organize, and they can continue to grow support from the general public and America's deep network of professional unions. The steelworkers' union has been vociferous in its defense of college athletes fighting for more rights. The NFL Players Association publicly supports the college players—its future members—as well.

Can that be what's next for college athletes? Is getting organized the next step to getting…unionized?

Can such a proposition become more than a publicity stunt, serving to actually change an imbalanced system?

#AllPlayersUnited

Across many college campuses this season, a relatively grass-roots movement called All Players United—led by Huma and representatives from NCPA—became widespread national news, as players from several schools visibly wore the letters APU during their college football games.

The goal of All Players United is simple and powerful. From NCPANow.org, the organization has a petition fans can sign to help join the cause:

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I’m joining players and fans from campuses across the nation to stand against unjust NCAA rules that leave college athletes without basic protections. Players should not be forced to forfeit their rights and endure unnecessary physical, academic, and financial risks as a condition of participating in NCAA sports.

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Now, the NCPA may have a tendency on its website to overstate the severity of the situation in college athletes—using terms like "the fate of college athletes hangs in the balance" while suggesting "NCAA sports is now at a tipping point"—to curry favor with the general public and raise awareness, sympathy and, yes, money for its cause.

Over the top as it may be, the plan has worked. More than 17,000 people consider themselves members of the NCPA, according to the website, with more and more supporters signing its petition every day, many of whom are current or former college athletes.

The movement has been years in the making. For more than a decade, the NCPA has been the brain child of Huma, a former UCLA football player who has dedicated his time to raise awareness for his organization in an effort to balance the playing field for college athletes.

"My organization has and will continue to be an effective agent of change," Huma wrote when reached via email. "The pressure points we will continue to push are public pressure, legislative campaigns to enact new laws, and using the judicial system to enforce current laws."

Huma is not the only former athlete to call out the NCAA. National pundits like Jay Bilas—a former basketball standout at Duke—routinely put the NCAA in their high-profile crosshairs. The light shed upon the increasingly imbalanced distribution of revenue between member institutions and student-athletes is imperative to create enough of an outcry for society—read: college sports fans—to demand a change.

But the college audience is too dedicated, too diverse and frankly too big to think any fan-based protest would work. The only way the NCAA model will ever change is if the players demand it.

George Atallah, assistant executive director of external affairs for the NFLPA, said in a telephone conversation that the fight for college players is as much about establishing their rights as it is about fighting for them, stating, "having been in this job [at the NFLPA] for four years, at least I know that we have rights to protect."

The NCAA does not acknowledge student-athletes as workers, so before any group can fight to protect its collective rights, amateur athletes under this umbrella have to fight to create rights in the first place.

Players are getting organized with the help of outlets like the NCPA. Can a players' union actually be next?

The Power of a College Union

There is nothing stopping any of us from creating a union. Just because the NCPA is in the news lately does not mean that a college union must fall under the umbrella of that organization or its current leadership.

In fact, according to Huma, the NCPA has little to no interest in getting involved in the process of creating a union.

"The NCPA has never advocated for players to form a union and that has not changed," Huma wrote via email. "There would be significant obstacles in doing so. There is a high turnover rate, a mix of state and federal labor laws, and a wide geographical area in which players from each school would need representation. Ultimately, state labor boards and the NLRB would have to decide whether or not players were employees and there could be disagreement."

The issues for organizing are plentiful, but perhaps the biggest issue is centered upon how the NCAA uses the term student-athlete with the expressed intent to differentiate amateur athletes enrolled in NCAA member institutions from those employed by the university. To form a labor union, college athletes first need to fight to be recognized as a labor force.

The Student-Athlete

Publicly, the NCAA uses the term student-athlete as a marketing tool to promote is homespun brand of amateurism. From the NCAA Division I rulebook:

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The Commitment to Amateurism. Member institutions shall conduct their athletics programs for students who choose to participate in intercollegiate athletics as a part of their educational experience and in accordance with NCAA bylaws, thus maintaining a line of demarcation between student-athletes who participate in the Collegiate Model and athletes competing in the professional model.

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The NCAA is clear in its commitment to the ideal that participation in amateur athletics is a feature of the educational process. By signing a national letter of intent and/or scholarship papers with a member institution, a prospect agrees to become a "student-athlete" under NCAA bylaws, thereby agreeing to commit to amateur status in exchange for what the NCAA feels is a fair and reasonable package of compensation.

In many cases, the NCAA's package for student-athletes is more than fair—tuition, room and board, books, food, apparel, access to educational support in exchange for playing a sport in college  

The NCAA views every student-athlete the same, protecting the rights of football and basketball players the same as archers or bowlers. On its face, that concept is what makes the NCAA system great for many student-athletes—amateurism is vital to the survival of most NCAA sports—and yet for thousands of student-athletes that sign up to play revenue sports like football and basketball, the idea of amateurism can feel like a tether, or even a noose.

Atallah suggested that the bigger fight for amateur athletes, with help from organizations like the NCPA, has been proving their standing as employees, especially given the noted history of the term "student-athlete."

From the Washington Law Review, Vol. 81:71, 2006:

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In 1953, in University of Denver v. Nemeth, the Colorado Supreme Court upheld a determination by the state Industrial Commission that Ernest Nemeth, a football player at the University of Denver, was an “employee” within the meaning of the Colorado workers’ compensation statute. Thus, the university was obligated to provide workers’ compensation for his football injuries. Stunned by the Nemeth decision, the NCAA responded by coining the term “student-athlete” and requiring its exclusive use thereafter. By emphasizing the identity of athletes as “students,” the NCAA endeavored to diminish any tendency to characterize them as “employees.”

As then-NCAA Executive Director Walter Byers later wrote:

[The] threat was the dreaded notion that NCAA athletes could be identified as employees by state industrial commissions and the courts.

[To address that threat, w]e crafted the term student-athlete, and soon it was embedded in all NCAA rules and interpretations as a mandated substitute for such words as players and athletes. We told college publicists to speak of “college teams,” not football or basketball “clubs,” a word common to the pros.

The NCAA adopted and mandated the term “student-athlete” purposely to buttress the notion that such individuals should be considered students rather than employees.

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A recent advertising campaign for the NCAA boasts, "there are more than 400,000 NCAA student-athletes, and most of us will be going pro in something other than sports."

People often wonder why the NCAA feels the need to advertise, but statements like that tag line are written to create a clear line of delineation between amateurism and "going pro."

Amateur vs. Professional

Truth be told, most of the NCAA's 450,000 college athletes actually do pretty well for themselves while on campus. A player given a full scholarship is not just entitled to have a seat in class in exchange for one on the bench. They get much more than that.

Athletes are often (but not always) given full room and board with meal plans, training table, tutoring and other academic-related assistance not always afforded to the general student body, and, in most cases, access to private medical treatment for injuries and ailments through team and athletic department trainers and physicians.

The college system is not broken for everyone, which has created a bit of a problem with the NCAA throwing a blanket over every scholarship as being the same.

Every scholarship is not the same. A soccer or field hockey player—or even a football player or basketball player—who makes no assumption at going pro in his or her sport may happily exchange the time spent training for and playing in collegiate athletic competitions for a full scholarship and benefits at a leading academic institution.

Huma was asked if he found it difficult to fight for the rights of college athletes when many of them—namely men's college basketball and football players—seem to have a completely different fight on their hands.

"Non-revenue athletes have been very supportive of our efforts and thousands have joined the NCPA in support of our mission and goals," Huma replied.  "All of the progress that we've made has led to protections for both revenue and non-revenue athletes.  For instance, we sponsored a California Student-Athletes Bill of Rights that gives protections to players of all sports i.e. requires schools to pay for all sports-related medical expenses for up to 2 years after his/her eligibility is exhausted, guaranteed scholarship renewals for permanently injured players, etc.  

"The NCPA has not advocated for professional salaries for any athletes."

Huma is quite certainly an advocate for college players' rights, helping steer the charge in California that led to the Student-Athletes' Bill of Rights.

The legislation is the groundwork for a state-by-state plan to protect amateur athletes from being treated unfairly by schools offering scholarships that, in some cases, don't exist beyond one year. The legislation also helps give a prospective student-athlete a true look at what a scholarship actually includes, protecting the signee from agreeing to hidden or confusing terms. Huma is also pushing California to require public colleges and universities to increase the level of financial investment of a "full" scholarship to include a $3,600 cost-of-living stipend.

Atallah had high praise for Huma's efforts, explaining that Huma "made progress nobody could have thought was even possible three years ago. He has been able to accomplish tangible stuff in California that might be precedent setting for the rest of the country."

The rest of the country may need the precedent.

In 2011 and again in 2012, the NCAA had discussed a nationwide stipend of $2,000, a suggestion that still faces considerable opposition. The issue, for some smaller schools that do not reap the enormous benefits of lucrative television deals, is that they simply cannot afford to pay every student-athlete—or even every football or basketball player—an annual stipend. From an April 2013 story on CBSSports.com: 

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"The gap between revenues of Division I schools now is enormous," [NCAA President Mark] Emmert said in January.

"For some schools it makes great sense to [pay the stipends]. [For] others, it would be a significant struggle.


"How do we keep everybody under that tent while recognizing these significant financial variations? There will be discussions about it."

 

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Haves Versus Have-nots

Some people scoff at the notion that the NCAA and its member institutions may not have enough money to pay its players when billions upon billions of dollars are coming in through television rights partners and corporate sponsors, as well as booster and fan support. In reality, college athletics is a series of haves and have-nots. It's not just the players who have nothing; it's the small conferences and outlying schools as well.

Much of the big money in college athletics comes from television deals with the conferences, with hundreds of millions of dollars spread across 10 to 14 members. Even the BCS or upcoming playoff in college football has a very slim invitation list, rewarding the most powerful schools with even more exposure, money and power.

The NCAA basketball tournament casts a much wider net, but even that playing field is hardly level between the power conferences and those on the outside. There is so much interest in March Madness that the phenomenon reaches beyond the NCAA tournament to the conference tournaments which, like the deals in football, are negotiated separately by each league.

If an edict came down that all NCAA Division I schools had to pay their players, some schools already in the red wouldn't be able to survive. If conference realignment has taught us one thing, it's that the most powerful schools, and conferences, don't exactly like to share the wealth.

The NCPA, Ramogi Huma, Rights and Opportunity

The NCPA not only raises awareness for the perceived plight of college athletes, it uses facts, figures and carefully constructed promotional materials to raise money. Lots of money.

According to filed tax returns, the National College Players Association qualifies for tax-exempt status while raising more than $115,000 in donations and contributions per year.

According to the organization's 2011 tax return, the NCPA had raised nearly $885,000 between 2007 and 2011 (Note: No returns with information before 2007 were found through our search.)

Of the $129,214 raised by the NCPA in 2011, $104,395 was paid directly to Huma for his work as president. According to the 2010 tax return, Huma earned just more than $94,000, while in 2009, Huma filed a return for the company in which he took home $83,024 in personal salary.

There are opportunists everywhere, and a cottage industry of people who make money off the amateurism of college athletes. With that in mind, Huma was asked if he has faced any scrutiny or skepticism with getting paid to run an organization like the NCPA when none of the players for whom he advocates do.

"As far as finances," Huma replied, "few if any effective organizations operate without staff. You are correct, there are lots of people who make a living taking from college athletes. I make a living helping college athletes, and the players really appreciate that. None of my salary comes from raiding the pockets of college athletes." 

Huma and the NCPA are, admittedly, going up against a billion-dollar monolith like the NCAA, a cause that Huma has dedicated his life to pursuing. And while the numbers look skewed from what the NCPA takes in and Huma takes out—more than 60 percent of donations, on average, go to his compensation—there has been no indication through media reports that Huma deceived any of his donors.

Huma's work has also been effective, and with the growth of his organization comes more awareness of players' rights. The APU stunt has everyone talking about this topic, with more pressure than ever being put on the NCAA and its member institutions. 

Once A Student-Athlete, Always A Student-Athlete

Before this situation reaches a boiling point and the fights for rights lead to the formation of one or more athletes' unions, the NCAA could decide to allow student-athletes to make money from outside sources.

Instead, the organization has steadfastly held on to a woebegone model of amateurism.

If someone wants to pay Johnny Manziel to sign a piece of paper, the NCAA has a fragile standing to deny him the ability to charge the person whatever he wants.

If an SEC booster wanted to slip some spending money to Arian Foster or Charles Barkley—two former student-athletes who have recently admitted to taking money while in college—because they seem like nice guys, the NCAA should not have jurisdiction over that unless dots can be connected back to the school or its coaches. And yet, under the NCAA's blanket of amateurism, they do. 

The NCAA could choose to have it both ways, keeping the specter of amateurism afloat while a player is still enrolled in school by allowing players to earn money off their likeness to be put into a trust fund, available only upon completion of a degree from a member institution.

Asked about its rule regarding rule 12.4.1.1. about a player earning money off his or her own likeness as related to athletics, as well as the organizations' stance on APU and the potential for a prolonged fight with players for more rights. Stacey Osburn, a spokeswoman for the NCAA, replied with the organization's original statement regarding the APU movement.

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As a higher education association, the NCAA supports open and civil debate regarding all aspects of college athletics. Student-athletes across all 23 sports provide an important voice in discussions as NCAA members offer academic and athletic opportunities to help the more than 450,000 student-athletes achieve their full potential.

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There are a million ways the NCAA could allow players the ability to make money without having to share in its riches. And yet, the organization's—namely the university presidents' and conference commissioners'—refusal to acquiesce to simple external revenue sources for players is what has them in a situation where the players are so disgruntled they've organized, leading to suggestion and speculation of more down the line.

This is not what the NCAA needs, full potential, or otherwise.

 

A More Perfect Union

The players are becoming more organized by the week, which raises the question of whether college players can (and will) organize to the point of creating a players' union.

In short, that answer to the first question is yes, but it would be so difficult to pull off that it's probably not worth the trouble to even try—thereby answering the second with a pretty simple: it's too complicated to work.

If players were to unionize, Huma said, "The structure would likely resemble the pro unions - players reps on each team, an executive board, etc.''

There is nothing stopping the players from creating a union, or even a series of regional or local unions, other than the fact that they would first have to fight the NCAA's assertion that by signing a national letter of intent and scholarship papers they are agreeing to specific terms that classify them as students, not employees, assuming they could ever get themselves organized in time for it to matter.

Do college players have the leverage to win that fight? Moreover, can other people like Huma serve as organizers for the cause expeditiously enough for it to matter? If the NCPA has no interest in creating a union of college athletes…will anyone?

That may be biggest problem with this union idea: College athletes are only around for, at most, five years. By the time this case would even get in front of a judge or arbiter, most if not all of the original complainants would be out of school, fighting the fight for the next generation to reap the benefits.

People like former UCLA basketball player Ed O'Bannon.

O'Bannon has been fighting the NCAA for years after filing a lawsuit in 2009 that claims the NCAA knowingly allowed gaming companies like Electronic Arts to use the likenesses of student-athletes for their college sports titles, thereby profiting off the players without sharing any compensation.

Whlie EA Sports finally gave up the fight in late September—canceling their popular NCAA Football game title in the process—the deep-pocketed NCAA is threatening to take the case to the Supreme Court.

This is a harbinger for the current players' case, and the final result will have lasting ramifications on the system. If they ever get a final result.

For now, the only leverage the players have is to protest or quit. The former seems noble, while the latter seems downright insane, especially given the competitive nature of college athletics.

There is no benefit for any one player to boycott playing, unless they all do it. There's no benefit for the players to even talk about their protests. Several players who wore APU on their wrist or ankle tape were admonished by team coaches, who made it clear they were not pleased those protests weren't discussed or sanctioned by the schools.

Asked if any NCPA members would be willing to talk on the record about the process of organizing and the potential for unionizing, Huma said, "Our players are not available to the media at this point given the sensitivity around our campaign— those who are planning on participating and those who are in talks with their schools due to their participation. However, this may change in the future."

The future. That's where the real agents of change come in.

The Power Players

Once a player signs with a team in any NCAA sport, they ostensibly become property. The player agrees to accept a scholarship while abiding by the rules of the NCAA and whichever member institution they choose…and chooses him.

Until that point in the process—when a player chooses a hat or a shirt, faxes…yes, faxes—in his NLI or talks to Rece Davis of ESPN on National Signing Day—recruits have all the power. All of it.

Coaches fawn over recruits. They call them and text them and tweet them and mail them love notes. They offer them starting jobs, their favorite number and a host of other pot-sweeteners, some of which may include extra benefits like money and women that the NCAA frowns upon.

High school stars need to look at the long game. It's hard to renegotiate a deal after you've signed it, so the fight for college players to demand more favorable working conditions is an insurmountable task, unless the NCAA relents to growing public pressure.

But before they sign that NLI, the high school recruit holds the future of up to a dozen programs in his hands. Why, then, can't every high school recruit over one year band together to demand better working conditions?

Don't sign the papers if you don't like the conditions. If no one signs, then the conditions would have no choice but to change.

If there's a union to be created, high school may be the best place to start.

Unless otherwise noted, all quotes were obtained firsthand.