As college football players inch toward employee status, what could they stand to gain from getting organized?
Since the passage of California’s state NIL law in 2021, the pace at which college athletics, particularly college football, has moved toward an employee-employer relationship with athletes has quickened.
The growing pains in the NIL era have been well documented, from the bottom falling out on high-profile deals to more run-of-the-mill coaching gripes. The solution currently sought by the NCAA is an act of Congress to overhaul and create controls in the marketplace for paying athletes.
But despite a slew of measures introduced at the federal level, the prognosis is poor that any gain the necessary broad-based support to pass and become law. And in lieu of a federal firewall for the NCAA, a number of court cases, proposed state laws and the NLRB are likely to keep moving the needle closer to an embrace of employment status.
It’s a drumbeat that coaches and administrators hear loud and clear.
“I haven’t heard anybody talking about a Plan B now,” North Carolina athletic director Bubba Cunningham said to On3’s Eric Prisbell. “Hope we have people working on that. We do need a Plan B and C. And what does it look like: Do we go to a revenue-sharing model for some of our teams? Do we go to need-based models for the majority of our teams? What impact do all of these conversations have on the Olympic movement?”
North Carolina football coach Mack Brown offered a similar sentiment on “The Paul Finebaum Show” last week.
“So I think we’re going to see major changes over the next two years. I think we’ll see student athletes becoming employees of universities. I think we’ll see more of a salary cap,” Brown said.
Absent a federal bill resetting the paradigm for college sports, many outside observers think the endgame is some sort of employee recognition. And with that change, athletes from respective sports can collectively bargain with schools over working conditions, compensation, and so on.
So what, exactly, might be up for discussion at an eventual bargaining table for college football players?
Money, and lots of it
College football is the revenue king in college sports. It’s driven the seismic conference realignment in recent years — USC and UCLA will be in the Big Ten, Oklahoma and Texas in the SEC — and seems poised to maintain its stranglehold with the expansion of the College Football Playoff in 2024-25.
The main source of revenue, though — TV payouts — is still kept from the players. The emergence of NIL has been a boon for college football players, but pales in comparison to the TV totals. The SEC paid out a total of more than $800 million to member schools for Fiscal Year 2022; the Big Ten paid out more than $845 million.
And getting some share of that revenue for football players, specifically, would likely be the first objective in any negotiation.
“They never sort of recognize that some of them generate unbelievable amounts of revenue that create the entire enterprise,” said Marc Isenberg, who works in wealth management and teaches the NIL experience at USC’s Annenberg School for Communication and Journalism.
Isenberg argued that purely on the value the athletes generate, they are deserving of a seat at the table when it gets divided up.
“And all they were saying is they deserve to be a stakeholder in a business that they help build. And the labor in any other industry is duly recognized,” Isenberg said.
For example, the 2020 NFL CBA guarantees the players receive at least 48% of revenues by the 2021 season and 48.8% of revenues with 17-game seasons.
Sharing this money in any proportion would be a big departure for the NCAA and schools, as doing so would require admitting that not all college athletes exist on the same financial plane.
“We have all the evidence that suggests that athletes — certain athletes — are more like employees than they are students. You can still be a student, but we’re talking about the function of generating, you know, multiple millions, collectively billions.” Isenberg said
“And so they just sort of keep coming back to, ‘Well, that’s just a very small sliver of college athletics.’ While true, I also feel like that they profit from, or benefit from lumping everybody together,” he concluded.
Unlike the NFL or other pro leagues, some revenue generated at the college level is coming from men’s and women’s basketball and Olympic sports. Some portion of revenue would be up for those athletes to bargain for in their own negotiations — and up to the schools and players to determine the proper proportions.
But there’s little chance organized college football players would pass up getting their piece of the biggest pie out there.
“They’re leaving so much money on the table individually. Like they don’t have to think about it in terms of labor solidarity. They have to think about the check they could get versus the check they’re gonna get,” Jason Stahl, executive director of the College Football Players Association said.
Improved working conditions and healthcare
The “NFL rookie from Alabama remarks how easy pro practices are” is practically its own sub-genre of rookie minicamp stories. This year, it was Detroit Lions rookie Jahmyr Gibbs, who spent one season in Tuscaloosa, offering up the goods.
But these reflections are illustrative of one of the biggest differences between life as a college and professional football player: How demanding and taxing practice can be.
During the NFL season, teams have fewer padded practices than they do games; 11 during the first 11 weeks of the regular season and three the rest of the way. There is no such cap or even an agreed-upon baseline in college football.
Heat stroke is another glaring example of the strides that the NFL has made — in part because players demanded it. Since Minnesota Vikings lineman Korey Stringer died from heatstroke in 2001, the NFL has not had a death from it since. The Korey Stringer Institute at the University of Connecticut shared statistics from HBO’s “Real Sports” that tallied 30 deaths of NCAA football players from heat stroke since 2000.
“No NFL players in the last two decades have died of heatstroke,” Dr. Kathleen Bachynski, an assistant professor of public health at Muhlenberg College said. “That doesn’t happen. And yet we see basically every year either a death or a near death of a college football player. So that really highlights how preventable that is. And how with actual oversight and even just really, really simple things like having an ice bath available or just having really, really basic resources available, that this can be totally prevented.”
Bachynski pointed to the instance of Maryland offensive lineman Jordan McNair, who died in 2018 as a result from heat stroke induced during a team conditioning session. Then-Maryland head coach DJ Durkin was ultimately ousted from his job there, but Bachynski noted there is no long-term recourse or strict oversight in place to prevent the same people causing the same problems. Durkin is currently the defensive coordinator at Texas A&M.
Countless college football programs already take those precautions and have for some time, but there is no uniform standard of care that players can expect. That could change with players having a say in the process. Further, in the current paradigm, if a team doctor says a player isn’t healthy enough to play, that’s usually the end of the road for them playing at that given school. The only option for most is to transfer to a team where the doctor thinks otherwise.
As such, players’ careers often hinge on one person’s risk tolerance. The NFL CBA offers players a chance to seek a second opinion regarding their ability to play football, and college athletes could push for a similar allowance at the bargaining table.
Given the extreme toll high-level football takes on the human body, giving players a say over their working conditions and healthcare feels like a bare-minimum to some.
Carrie Rheingans (D-Ann Arbor) represents the 47th legislative district in Michigan’s House of Representatives. With a district encompassing the University of Michigan, Rheingans recently introduced a bill that would, in part, give public school athletes in Michigan a runway to unionize. With a background in public health herself, it only seemed right to include those athletes in a broader legislative move, she said.
“They’re working, they’re having some difficult working conditions sometimes. So I thought since working conditions is one of the three things for which you can bargain in a collective bargaining agreement, that we should restore the right for student athletes to organize if they should like,” Rheingans said.
An end-around on antitrust law if they form a union, not just a member organization
Basically, if a union and employer are negotiating a collective bargaining agreement, it doesn’t have to comply with federal antitrust law. This is how the NFL and other professional leagues can have distinctly anti-competitive drafts.
“The benefit of the union is if things are collectively bargained between a union and the league or whatever the governing entity is, then they’re immune from antitrust law, which you wouldn’t have if it’s just some organization that’s representing athlete’s interest negotiating,” Mit Winter, a sports attorney at Kennyhertz Perry LLC, said.
This would also allow for a number of other sports-centric rules to employment that otherwise wouldn’t be legal. In essence, the employer can’t be charged with quashing competition because the labor has agreed to the rules of engagement within that labor market.
Restoring the value of a college degree
For all of the NCAA’s efforts on Capitol Hill to protect amateurism and the idea that their athletes are students first, bargaining with a unit of employees would be an opportunity to agree upon the value of a degree and protect the ability to get them.
Academic “clustering” is a well-documented concept among researchers examining college sports, occurring when more than a quarter of one team is in the same major. That major is often something generic like “general studies” or some variety of a communications degree.
Paradoxically, by accepting athletes as employees, schools could make strides to restore the value of the degree college athletes are supposed to be getting. This would work by baking in the value of a degree (and associated costs) into a bargaining agreement and employment contracts. A line could be drawn, contractually, to allow players to take classes that in the past were off limits due to practice conflicts. It’s even possible that a contract could include offering a deferred education, letting an athlete come play for the school, pursue a pro career and then come back to school.
“When I was an undergrad and grad student at the University of Michigan, I was friends with student athletes who were steered away from some particular majors,” Rheingans said. “Because those majors have labs that are incompatible with practice time. Maybe they have internship requirements that are incompatible with practice time. So it’s just really sad that sometimes these institutions treat them as athlete students instead of student athletes.”
It would give schools a stronger argument with respect to the idea that they are trying to educate the their athletes and give the athletes far more freedom within — and value from — their secondary education.
Stahl thinks if the NCAA had voluntarily come to negotiate or made some transformative offer to the players built around this idea, it could’ve put the NCAA in a position of strength in negotiation.
He recalled a conversation where someone remarked as much.
“He could’ve come out of the gates and come like right to you guys and you would like — it would’ve put you kind of in a bind because then they would’ve been negotiating from a position of strength,” Stahl recalled the person saying.
Instead, the NCAA has put a full-court press on getting a federal bill, seemingly swimming upstream against the burgeoning reality that college football players will be deemed employees eventually.